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LIBRARY 


THIS  is  a  discussion  of  the  attractions  of  the  legal  pro- 
fession; the  objections  to  choosing  it;  the  personal  qual- 
ities and  preparation  necessary  for  success  in  it;  and  the 
ideals  for  which  it  stands.  The  writer,  after  having  had  an 
extensive  practice  at  the  bar,  was  for  many  years  on  the  bench, 
and  has  long  been  a  professor  in  the  Yale  Law  School,  and 
Director  of  the  Bureau  of  Comparative  Law  of  the  Americat 
Bar  Assocfation.  The  design  of  the  work  is  to  give  a  young 
man  who  is  about  to  choose  a  profession  a  clear  idea  of  the 
reasons  both  for  and  against  seeking  to  enter  the  bar,  and  o 
the  spirit  in  which  a  lawyer  is  bound  to  fulfil  the  trust  whicl 
Society  has  placed  in  him.  IBHHHHHH^HT 


THE  YOUNG  MAN  AND  THE  LAW 


THE  MACMILLAN  COMPANY 

NEW  YORK  •    BOSTON   •    CHICAGO  •   DALLAS 
ATLANTA  •    SAN  FRANCISCO 

MACMILLAN  &  CO.,  LIMITED 

LONDON  •   BOMBAY  •   CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA.  LTD. 

TOEONTO 


THE  YOUNG  MAN 
AND  THE  LAW 


BY 

SIMEON  E.  BALDWIN,  M.A.,  LL.D. 

Wl 

Professor  of  Law  in  Yale  University;  Member  of  the  National  Institute 
of  Arts  and  Letters,  and  of  the  American  Philosophical   Society; 
Fellow  of  the  American  Academy  of  Arts  and  Sciences;  Formerly 
Chief  Justice  and  Governor  of  Connecticut,  President  of  the 
American  Bar  Association,  of  the  International  Law  As- 
sociation, of  the  American   Historical  Association, 
and  of  the  American  Political  Science  Association; 
Author  of  "Modern   Political    Institutions," 
"The    American   Judiciary,"    "American 
Railroad  Law,"    "Cases  on  Railroad 
Law,"    and    "The   Relations  of 
Education  to  Citizenship" 


I9eto  gorfe 

THE  MACMILLAN  COMPANY 
1920 

All  riffhtt  rrtrrvtd 


••- 

.- 


A 
h 

M 


DEDICATE  THIS  BOOK  TO 
THE  MEMORY  OF 

RICHARD  DUDLEY  HUBBARD,  LL.D. 

GOVERNOR  or  CONNECTICUT 

Who  gave  me  an  early  opportunity  to  serve 
my  state  as  a  member  of  the  Commission 

to  devise  a  plan  for 
Simplifying  Civil  Procedure 


756475 


CONTENTS 

CHAPTEB  PAGE 

I     FOREWORD 1 

II     ATTRACTIONS  OF  THE  LEGAL  PROFESSION       .      .       5 

1.  The  Majesty  of  the  Law,  and  the  Lawyer 

as  Its  Minister 5 

2.  The   Cultivation   of   the   Mind   and   Heart 

Incident  to  the  Legal  Profession       .      .      12 

3.  The  Opportunities  of  the  Lawyer  for  Pub- 

lic Service  and  Social  Advancement  .      .      30 

4.  The  Opportunities  of  the  Lawyer  for  Mak- 

ing Money 42 

5.  The  Spirit  of  Brotherhood  in  the  Bar  .      .     60 

6.  The  Variety  of  Legal  Business  ....      62 

III  OBJECTIONS    TO    CHOOSING    THE    LEGAL    PRO- 

FESSION         71 

1.  The  Charge  that  It  Leads  to  Dishonesty 

and  Defense  of  Guilt 71 

2.  The  Tendency  of  the  Legal  Profession  to 

Foster  a  Spirit  of  Roughness   and  An- 
tagonism       87 

3.  The  Charge  that  Legal  Procedure  Is  Anti- 

quated and  Unfair 91 

IV  THE  PERSONAL  QUALITIES  REQUISITE  FOR  SUCCESS 

IN  THE  LEGAL  PROFESSION      ....    106 

V     THE  EDUCATION  REQUISITE  FOR  SUCCESS  IN  THE 

LEGAL  PROFESSION 115 

VI     THE  IDEALS  OF  THE  PROFESSION 142 

INDEX  ,    155 


THE  YOUNG  MAN  AND 
THE  LAW 


CHAPTER  I 

FOREWORD 

Choosing  the  profession  that  suits  one's  tastes.  Roger  Minott 
Sherman's  comparison  of  the  law  and  the  ministry.  Field  of  law 
constantly  enlarging.  The  object  of  this  book,  and  its  order  of 
arrangement. 

THE  choice  of  any  vocation,  for  entering  which  a 
long  period  of  careful  preparation  is  requisite,  is  gen- 
erally irrevocable.  The  law  is  a  profession  of  that 
character.  It  ought  not  to  be  adopted,  therefore,  with- 
out full  consideration.  Personal  preferences  and  dis- 
position should  be  given  full  weight.  That  is  done  best 
which  is  done  gladly  'and  with  feelings  of  pleasure  in 
the  doing.  For  one  to  follow  a  calling  which  is  dis- 
tasteful, because  unsuited  to  his  powers  and  inclination, 
is  to  court  failure  from  the  start. 

Many  years  ago  a  theological  student  at  Yale  found 
himself  with  misgivings  as  to  whether  he  had  been  wise 
in  choosing  the  ministry  for  his  profession.  He  had 
some  leaning  to  the  law,  and  wrote  to  Roger  Minott 
Sherman,  one  of  the  leaders  of  the  New  England  bar, 

1 


2  THE    YOUNG    MAN    AND    THE    LAW 

asking  whether  he  could  not  "  be  an  active  and  useful 
Christian  and  be  a  lawyer."  The  reply  was  that  the 
good  of  man  required  that  all  useful  departments  of 
human  employment  should  be  occupied;  that  the  legal 
profession  in  modern  society  was  necessary  and  use- 
ful ;  and  that  the  main  question  for  any  one  in  choosing 
his  life  work  was,  What  shall  I  love  most  to  do? 

"  I  am  aware,"  Sherman  added,  "  of  the  force  of 
habit,  and  of  the  deference  paid  to  the  maxim,  *  choose 
the  employment  which  is  the  most  useful,  and  habit  will 
make  it  the  most  agreeable.'  This  maxim  is  sophisti- 
cal and  erroneous.  The  enquiry  is  not,  what  employ- 
ment is  in  itself  most  useful;  but  in  what  can  the 
individual  be  most  usefully  employed?  Habit  may 
mitigate  the  pains  of  crossed  inclination ;  but  can  never 
supply  that  energy  which  is  derived  from  the  current  of 
the  soul. 

' '  In  this  'tis  God  directs ;  in  that  'tis  man.'  "  x 

Sherman's  counsel  Was  asked  at  about  the  same  time 
by  a  successful  lawyer  of  ten  years'  standing,  who  was 
thinking,  from  conscientious  motives,  of  studying  for 
the  ministry.  He  replied  to  him  thus  : 

"  One  of  the  best  schools  for  a  practical  divine  is  the 
bar.  The  amount  of  good  which  a  person  can  perform  as 
a  minister  if  he  attains  the  age  of  seventy,  will  be  greater 
if  he  follows  the  practice  of  law  for  ten  years  than  if  his 
whole  life  were  devoted  to  the  clerical  profession.  Man 
must  be  drawn  by  the  cords  of  a  man:  by  those  principles 

i  Beers,  Biographical  Sketch  of  Roger  Minott  Sherman,  Bridge- 
port, 1882,  p.  38. 


FOREWORD  3 

of  influence  and  action  which  are  in  his  nature  and  can  be 
thoroughly  known  from  no  book  sacred  or  profane,  but  are 
discovered  and  understood  by  means  of  experience  alone: 
he  will  be  a  poor  practitioner  in  any  fine  or  mechanic  art 
whose  accomplishments  are  derived  wholly  from  books  or 
theories.  .  .  .  Men  who  go  directly  from  the  divinity 
school  to  the  pulpit  are  necessarily  deficient,  for  many  years 
at  least,  in  this  indispensable  qualification  for  their  office. 
.  .  .  Were  you  now,  sir,  to  enter  upon  the  profession  of 
divinity,  the  time  you  have  devoted  to  the  civil  law  will 
have  been  well  spent.  .  .  .  You  would  be  peculiarly  able 
to  render  great  service  to  the  Christian  cause."  ..."  You 
ought  to  follow  the  dictates  of  your  own  heart:  your  incli- 
nation «hould  be  your  rule  of  duty:  you  would  be  most 
useful  in  the  employment  with  which  you  are  most 
delighted."  i 

A  man  must  look  into  his  own  heart,  before  he  chooses 
his  profession.  "  Know  thyself  "  is  the  first  and  great 
commandment,  at  such  a  time.  As  Ruskin  has  said: 

"  We  are  not  sent  into  this  world  to  do  anything  into 
which  we  cannot  put  our  hearts.  We  have  certain  work  to 
do  for  our  bread,  and  that  is  to  be  done  strenuously;  other 
work  to  do  for  our  delight,  and  that  is  to  be  done  heartily ; 
neither  is  to  be  done  by  halves  or  shifts,  but  with  a  will; 
and  what  is  not  worth  this  effort  is  not  to  be  done  at  all." 

The  law  is  not  an  easy  profession.  Its  field  is  con- 
stantly enlarging.  If  any  one  can  feel  that  he  has 
mastered  it  as  it  stands  to-day,  he  is  far  from  having 
mastered  what  it  will  be  ten  years  from  to-day.  The 
period  of  legal  education  never  ends.  The  frontier 
recedes  before  each  new  step  in  advance. 

i  Beers,  Biographical  Sketch  of  Roper  Minott  Sherman,  p.  32, 


4     THE  YOUNG  MAN  AND  THE  LAW 

Hard  work  is  the  condition  of  all  real  success.  Pre- 
eminently it  is  so  to  both  the  student,  and  the  practi- 
tioner of  law.  It  is  not  the  object  of  this  book  either 
to  induce  any  man  to  take  it  up  as  his  life  calling,  or 
to  dissuade  him  from  it.  It  is  its  object  to  state  fully 
and  plainly  both  the  advantages  and  disadvantages  of 
the  legal  profession  in  the  United  States,  the  oppor- 
tunities which  it  offers  and  the  risks  which  it  involves, 
the  conditions  of  success,  and  the  chances  of  failure. 
The  general  scheme  of  arrangement  which  has  been  fol- 
lowed is  to  consider  first  the  attractions  of  the  profes- 
sion ;  then  the  main  objections  to  engaging  in  it ;  then 
the  personal  qualities  requisite  for  success  in  it ;  then 
the  proper  education  for  it ;  and  finally  its  great  ideals. 


CHAPTER  II 

ATTRACTIONS    OF    THE    LEGAL    PROFESSION 

1.  The  Majesty  of  the  Law,  and  the  Lawyer  as  its 
Minister 

Relation  of  law  to  morals.  Natural  Law,  as  defined  by  Cicero. 
Custom ,  the  source  of  most  law.  Functions  of  Courts  and  law- 
yers, respectively,  in  determining  the  law.  Law  reports.  The 
right  of  parties  to  suits  to  employ  lawyers.  Lawyers  are  officers 
of  the  court.  Lawyers  prevent  many  law  suits.  To  bring  suit, 
sometimes  a  duty.  Spinoza's  view.  Law,  our  best  inheritance. 
The  lawyer  as  an  amicus  curice. 

THE  word  Law  is  sometimes  used  to  denote  both  that 
law  which  organized  society  enforces,  and  those  rules  of 
morals  which  find  their  support  only  in  what  we  call 
the  conscience  of  the  individual  or  the  conventions  of 
unorganized  society. 

Cicero,  in  a  lofty  passage,  describes  law  in  this  last 
aspect.  "  It  is,"  he  says,  "  not  only  older  than  peoples 
and  commonwealths,  but  of  equal  age  with  that  God 
who  guards  and  rules  heaven  and  earth.  No  law  was 
ever  written  down  that  one  man  should  contend  with  a 
great  hostile  force  upon  a  bridge,  and  bid  it  to  be 
destroyed  behind  him,  yet  none  the  less  shall  we  judge 
that  Codes  acted  in  that  noble  way  under  the  law  and 
empire  of  fortitude;  nor  if,  in  the  reign  of  Tarquin, 

5 


6     THE  YOUNG  MAN  AND  THE  LAW 

there  was  no  written  law  of  Rome  against  adultery,  did 
he  nevertheless  break  an  eternal  law  when  he  offered 
violence  to  Lucretia.  For  there  was  a  reason  proceed- 
ing from  the  nature  of  things,  impelling  to  the  right 
and  dissuading  from  the  wrong,  which  in  fine  begins  to 
be  law  not  when  it  is  written,  but  when  it  originates. 
But  it  originates  simultaneously  with  the  divine  mind. 
Wherefore  the  true  and  chief  law  apt  for  commanding 
and  obeying  is  the  unswerving  reason  of  highest  Jove." 

Law  as  administered  by  lawyers,  is  something  narrower 
than  this.  It  consists  of  rules  of  human  conduct  which 
organized  political  society  recognizes  and  undertakes  to 
enforce.  But  the  soul  of  this  law  is  not  force  but  right. 
Law  in  human  society  is  made  for  man.  It  is  made  for 
beings  having  in  every  country  —  considered  as  a  mass 
—  certain  general  notions  of  moral  justice.  These 
notions  are  the  unwritten  constitutions  no  positive  law 
violating  which  can  long  endure. 

The  same  thing  is  true  of  custom,  and  of  judicial 
decisions  supporting  custom.  If  they  are  contrary  to 
moral  justice,  the  day  will  come  when  they  will  be  abro- 
gated, if  not  by  legislation  nor  by  disuse,  then  by  the 
courts  themselves. 

Standards  of  social  approval,  in  respect  to  law  in  all 
its  senses,  may  change  from  age  to  age.  If  antiquated 
morality  and  antiquated  law  do  not  disappear  together, 
one  does  not  long  survive  the  other.  As  Sir  Frederick 
Pollock  has  remarked,  "  Legal  justice  aims  at  realizing 

i  Cicero,  De  Legibus,  Lib.  II,  Cap.  4.  Cf.  ibid.  Lib.  I,  Cap. 
XV,  quoted  infra,  on  page  147. 


ATTRACTIONS    OF    THE    PROFESSION          7 

moral  justice  within  its  range,  and  its  strength  largely 
consists  in  the  general  feeling  that  this  is  so.  Were 
the  legal  formulation  of  right  permanently  estranged 
from  the  moral  judgments  of  good  citizens,  the  State 
would  be  divided  against  itself."  1 

The  power  of  recognizing  and  enforcing  law  in  the 
United  States  is  vested  in  the  courts.  Our  legislatures 
make  part  of  this  law ;  the  customary  rules  of  conduct 
approved  by  the  community,  and  accepted  by  the 
judicial  authority,  make  another  and  greater  part. 
For  ascertaining  what  it  is  at  any  particular  time  and 
how  it  applies  to  any  particular  case,  the  decisions  of 
the  courts  are  the  ultimate  authority.  The  more  im- 
portant of  those  rendered  in  each  State  and  in  the 
United  States  are  officially  published  from  time  to  time, 
under  the  name  of  "  Reports."  They  constitute  in 
each  case  the  ground  of  a  judgment  which  secures  the 
termination  of  a  controversy  in  a  particular  manner 
ordered  by  the  courts,  after  hearing  from  lawyers  rep- 
resenting each  of  the  opposing  parties.  They  are  often 
substantially  an  adoption  of  the  line  of  reasoning  pre- 
sented at  the  bar  on  one  side  or  the  other.  It  is  the 
function  of  lawyers  to  put  their  clients'  cases  before 
the  court,  and  that  of  the  judges  to  dispose  of  them 
according  to  law. 

Human  experience  has  shown  that  judges  need  the 
help  of  lawyers  to  aid  them  in  coming  to  just  conclu- 
sions. Hence  in  most  of  the  United  States  there  is  no 
right  to  practice  law  except  by  a  grant  or  license  from 
i  Pollock,  First  Book  of  Jurisprudence,  London,  1896,  p.  31. 


THE  YOUNG  MAN  AND  THE  LAW 

the  State.  Such  a  right  is  in  the  nature  of  a  public 
franchise.1 

In  England,  for  centuries,  men  had  to  plead  their 
own  causes.  If  one  who  was  ignorant  or  tongue-tied 
sued  or  was  sued,  he  must  nevertheless  speak  for  him- 
self. His  adversary  had  a  legal  interest  in  the  dis- 
advantage due  to  his  failings  in  these  respects.2 

It  was  found  that  this  was  not  seldom  the  occasion  of 
great  injustice.  Gradually  the  law  was  changed,  and 
it  became  first  the  general  rule  and  afterwards  the  uni- 
versal rule,  that  parties  to  a  lawsuit,  whether  it  were 
civil  or  criminal,  had  the  right  to  appear  by  counsel. 
Regulations  were  also  adopted  to  secure  to  those  who 
desired  to  enter  the  bar  adequate  opportunities  for 
learning  the  law,  and  to  require  of  them  proof  of  good 
character,  to  be  established  by  the  favorable  opinion  of 
those  already  admitted  to  the  profession.3 

From  the  days  of  the  earliest  settlements  in  the 
United  States,  it  has  been  generally  recognized  here 
that  the  institution  of  the  bar  made  for  good  govern- 
ment. It  promoted  justice,  and  the  lawyer  was  there- 
fore given  a  certain  status  in  the  official  organization  of 
the  judicial  department.  Every  American  lawyer  is  a 
minister  of  justice.  He  is  an  officer  of  court  as  fully  as 
the  Judge  on  the  bench,  or  the  sheriff  who  preserves 
order  in  the  proceedings,  or  the  clerk  who  records 

1  In  re  Co-Operative  Law  Co.,  198  New  York  Law  Reports,  p. 
479;  92  Northeastern  Reporter,  p.  IS. 

2  Maitland  and  Montague,  edited  by  Colby,  A  Sketch  of  Eng- 
lish Legal  History,  New  York  and  London,  1915,  p.  94. 

3  O'Brien's  Petition,  79  Connecticut  Law  Reports,  p.  46. 


ATTRACTIONS    OF    THE    PROFESSION 

them.  He  has  a  longer  tenure  of  office  than  any  of 
them.  He  holds  for  life.  He  never  need  retire,  and 
never  can  be  recalled,  except  as  the  court  may  disbar 
him,  after  a  hearing,  for  some  grave  offense. 

He  may,  however,  be  censured  by  the  court,  or  other- 
wise subjected  to  discipline  which  stops  short  of  disbar- 
ment. In  arguing  a  cause,  he  must  conform  to  the 
proprieties  of  the  occasion  and  the  settled  rules  of 
judicial  procedure.  As  an  officer  of  the  court  he  speaks 
in  a  certain  sense  by  its  authority,  and  always  in  its 
presence.  It  is  the  duty  of  the  Judge  to  interpose  if 
he  abuses  his  privileges  by  urging  considerations 
obviously  foreign  to  the  cause,  or  invoking  prejudice 
instead  of  reason.  Such  a  course  may  not  only  call 
upon  him  a  rebuke  from  the  bench,  but  cost  his  client  a 
verdict,  should  he  afterwards  obtain  one.  There  are 
words  and  appeals  which,  once  uttered  to  a  jury,  do 
their  work  on  the  instant  beyond  all  power  of  remedy.1 

It  has  been  sometimes  said  that  the  existence  of 
lawyers  made  men  litigious.2  To  one  who  feels  that 
he  has  been  wronged,  the  power  to  get  the  opinion  of  a 
competent  and  disinterested  adviser  as  to  whether  he 
has  been  or  not  and,  if  it  be  favorable  to  his  claim,  the 
opportunity  to  have  it  presented  in  proper  form  for 
the  consideration  of  a  court,  certainly  increases  the 
number  of  meritorious  actions  brought.  It  probably 

1  See  Hennessy  vs.  Metropolitan  Life  Ins.  Co.,  74  Connecticut 
Law  Reports,  pp.  699,  708-710. 

2  See  a  discussion  of  this  subject  in  Cicero,  De  Le gibus,  quoted 
infra  on  page  151. 


10         THE    YOUNG    MAN    AND    THE    LAW 

lessens  the  number  of  groundless  actions.  A  lawyer  is 
in  honor  bound  to  bring  no  suits  for  which  he  thinks,  on 
full  consideration,  there  is  no  reasonable  chance  of  a 
favorable  issue.  Probably  every  lawyer  in  large  prac- 
tice oftener  advises  that  claims  be  settled  or  abandoned 
than  that  they  should  be  the  subject  of  a  suit. 

It  is  also  true  that  insistence  on  one's  rights,  even  at 
the  expense  of  a  law-suit,  may  sometimes  be  a  duty. 
Society  rests  on  a  body  of  social  rights.  They  must  be 
maintained  inviolate,  if  social  health  is  to  be  preserved. 

Because  the  Jewish  authorities  had  excommunicated 
Spinoza  for  heresy,  his  right  to  share  in  his  father's 
estate  was  denied  by  his  sisters.  He  insisted  that  it 
was  perfect,  and  took  legal  proceedings  to  establish  his 
title.  It  was  thus  established,  and  he  then  released  the 
property  to  his  sisters,  stating  his  opinion  as  to  the 
principle  involved  thus:  "In  a  State  where  just  laws 
are  in  force,  it  is  not  only  the  right  of  every  citizen, 
but  his  duty  towards  the  common  weal,  to  resist  in- 
justice to  himself,  lest  peradventure  evil  men  should 
find  profit  in  their  evil  doing."  1 

Law,  as  a  social  necessity,  cannot  be  guarded  too 
carefully.  It  is  our  best  inheritance  from  former  gen- 
erations. It  is  what  gives  value  to  life  and  property, 
because  it  is  all  that  assures  their  possession.  As 
Cicero  said  to  the  judges  before  whom  he  was  pleading 
for  Csecina :  "  To  one  who  succeeds  to  an  estate  a 
greater  inheritance  comes  from  the  principles  of  right 

i  Quoted  by  Johnson  T.  Platt,  The  Assertion  of  Rights,  Boston, 
1884,  p.  7. 


ATTRACTIONS    OF    THE    PROFESSION        11 

and  law,  than  from  those  by  whom  this  estate  was  left 
to  him."  l 

The  lawyer  and  the  courts  share  the  high  function  of 
keeping  these  principles  inviolate,  and  of  enforcing  them 
whenever  called  upon  to  do  that  service. 

Nor  to  entitle  the  lawyer  to  be  heard  at  the  bar  is  it 
necessary  that  he  should  appear  there  to  speak  for  a 
client.  He  is  not  only  an  officer  of  the  court,  but  a 
friend  of  the  court.  As  an  officer  he  represents  the 
interests  of  others.  As  a  friend  —  amicus  curice  —  he 
has  the  right  to  offer  suggestions  when  they  are  made 
simply  as  aids  to  justice.  This  term  describes  a  lawyer 
who,  in  a  controversy  in  which  he  does  not  appear  for 
either  side,  volunteers,  with  the  consent  of  the  court,  to 
state  what  he  conceives  to  be  the  law  which  should 
govern  the  decision.  He  sees  a  matter  in  dispute  where 
he  believes  that  justice  might  be  better  done  if  he 
declared  his  own  view  of  the  proper  disposition  of  the 
contest,  which  is  to  be  made  by  the  judge.  It  is  a  piece 
of  brotherly  advice  from  one  public  agent  to  another. 
An  intervention  of  this  sort  has  often  prevented  the 
doing  of  injustice,  or  furthered  the  doing  of  a  completer 
justice. 

There  was  such  an  incident  on  the  trial  of  Algernon 
Sidney  for  high  treason.  By  the  law  of  England  as  it 
then  stood  (1683)  a  man  accused  of  that  crime  could 
not  have  the  aid  of  counsel.  There  was  a  technical 
defect  in  the  indictment.  A  barrister  rose,  as  an 
amicus  curia,  and  brought  it  to  the  attention  of  the 

i  Cicero,  Oratio  pro  A.  Ccetina,  Cap.  XXVI. 


12         THE    YOUNG    MAN    AND    THE    LAW 

court.  Chief  Justice  Jeffreys,  who  was  presiding, 
overruled  the  objection  on  this  score  (and  properly), 
but  added,  "  We  thank  you  for  your  friendship."  1 

2.  The  Cultivation  of  the  Mind  and  Heart  Incident  to 
the  Legal  Profession 

Its  spiritual  benefit.  The  demand  for  metaphysical  and  his- 
torical knowledge.  Bolingbroke's  opinion.  Law  constantly 
changing.  Its  procedure  growing  less  formal.  Less  emphasis 
given  to  study  of  ancient  technicalities.  Comparative  Law. 
Legal  traditions.  Practice  of  Rhetoric  and  Logic.  John  Adams' 
advice.  Legal  maxims  only  half  truths.  Dialectic.  The  spirit  of 
all  law  is  the  rule  of  right  rather  than  of  authority.  Haller's 
view.  Lawyers  must  study  into  the  origin  and  causes  of  things, 
and  in  a  philosophical  way.  Justinian's  description  of  their  work. 
Forms  of  procedure  have  developed  rights.  Law,  both  an  ab- 
stract study  and  a  practical  art.  It  promotes  a  spirit  of  rever- 
ence. It  has  spread  political  liberty  and  is  now  spreading  poli- 
tical justice.  Its  appeal  to  the  heart  and  feelings.  Here  youth 
is  a  help.  The  jury,  as  a  teacher  of  psychology.  Home  Tooke's 
characterization  of  it.  Legal  oratory.  It  is  consistent  with  con- 
cisement  of  statement.  Insisting  on  the  main  points  of  argu- 
ment. Personal  honesty.  Law,  the  science  of  enforceable  rights. 
It  limits  personal  and  social  duties.  To  determine  these  limits, 
calls  on  the  lawyer  for  original  research.  The  lawyer  finds  aid 
in  general  literature.  His  share  in  legislation. 

When  the  poet,  Sill,  was  choosing  his  vocation,  he 
was  at  first  inclined  to  the  law,  on  account,  he  said,  of 
"  the  benefit  which  it  would  be  to  himself  spiritually." 
"As  Kingsley  puts  it,"  he  added,  "  we  are  set  down  be- 
fore that  greatest  world-problem  — *  Given  self,  to  find 

1  Sidney,  Discourses  on  Government,  New  York  ed.,  1805,  Vol. 
I,  pp.  242,  234. 


ATTRACTIONS    OF    THE    PROFESSION        1 

God.'  So,  considering  that  for  such  tasks  the  mind 
needs  every  preparation,  skill  and  practice  in  drawing 
close  distinctions,  subtileness  in  detecting  sophistry, 
strength  and  patience  to  work  at  a  train  of  thought 
continuously  long  enough  to  follow  its  consequences 
clear  out,  and  some  systematized  memory  (if  for  noth- 
ing but  holding  and  duly  furnishing  your  own  thoughts 
when  needed)  —  I  say,  seeing  no  better  —  or  rather,  no 
other  —  way  to  gain  these  but  by  entering  the  law, 
thitherwards  I  have  set  my  face."  x 

The  mind  and  heart  of  every  lawyer,  who  is  in  the 
least  degree  worthy  of  the  name,  must  be  in  some  meas- 
ure strengthened  by  the  tasks  which  the  necessary  work 
of  his  calling  forces  him  in  some  measure  to  perform. 

In  Thackeray's  Pendennis,  he  contrasts  two  lawyers, 
one  weary  of  law  and  giving  himself  to  literature;  the 
other  devoted  to  law,  and  so  —  says  Thackeray  —  la- 
boriously devoting  great  talents  to  a  mean  subject, 
to  the  exclusion  of  "  all  higher  thoughts,  all  better 
things." 

I  do  not  think  that  this  description  of  the  great  satir- 
ist strikes  a  responsive  chord  in  the  breast  of  any  Amer- 
ican lawyer.  Whatever  else  the  law  may  be,  it  is  no 
mean  subject  of  pursuit,  and  least  of  all  in  the  United 
States.  Lord  Bolingbroke,  in  describing  the  legal  pro- 
fession of  his  day  and  its  general  ignorance  of  history, 
spoke  of  it  as  "  in  its  nature  the  noblest  and  most  bene- 
ficial to  mankind,  in  its  abuse  and  debasement  the  most 

i  Parker,   Life    and    Work    of   Edward   Rowland   Sill,    Boston, 
1915,  p.  55. 


14         THE    YOUNG    MAN    AND    THE    LAW 

sordid  and  the  most  pernicious.  A  lawyer,"  he  added, 
"  now  is  nothing  more  (I  speak  of  ninety-nine  in  a  hun- 
dred at  least),  to  use  some  of  Tully's  words,  '  nisi  Icgu- 
leius  quidem  cautus,  et  acutus  praeco  actionum,  cantor 
formularum,  auceps  syllabarum.'  But  there  have  been 
lawyers  that  were  orators,  philosophers,  historians : 
there  have  been  Bacons  and  Clarendons.  There  will  be 
none  such  any  more,  till  in  some  better  age  true  ambition, 
or  the  love  of  fame,  prevails  over  avarice,  and  till  men 
find  leisure  and  encouragement  to  prepare  themselves 
for  the  exercise  of  this  profession,  by  climbing  up  to  the 
vantage  ground  (so  my  Lord  Bacon  calls  it)  of  Science, 
instead  of  groveling  all  their  lives  below,  in  a  mean  but 
gainful  application  of  all  the  little  arts  of  chicane. 
Till  this  happen,  the  profession  of  the  law  will  scarce 
deserve  to  be  ranked  among  the  learned  professions. 
And  whenever  it  happens,  one  of  the  vantage  grounds  to 
which  men  must  climb,  is  Metaphysical,  and  the  other, 
Historical  Knowledge." 

An  American  bar  hardly  existed  when  Bolingbroke 
wrote  this,  nearly  two  hundred  years  ago,  but  as  soon 
as  the  legal  profession  was  fairly  established  here,  it 
recognized  the  duty  and  the  advantages  of  cultivating 
historical  investigation. 

Law  is  the  most  enduring  creation  of  civilized  society. 
It  endures  because  it  is  in  a  state  of  perpetual  change. 
It  is,  however,  such  a  change  as  is  incident  to  all  life. 
The  main  structure  of  the  man  remains  apparently 
much  the  same  from  year  to  year.  The  tissues  are  in- 
sensibly and  invisibly  renewed.  Only  by  comparing  the. 


ATTRACTIONS    OF    THE    PROFESSION        15 

human  frame  as  it  appears  at  the  beginning  and  at  the 
close  of  a  considerable  period  of  time,  do  we  perceive 
clearly  what  alterations  have  been  wrought. 

It  is  so  with  legal  institutions.  In  substance  they 
have  come  down  from  former  ages.  In  certain  particu- 
lars they  are  inherited  without  change;  in  more  they 
have  become  something  unmistakably  different. 

The  law  of  a  nation  is  viewed  by  every  generation 
from  its  own  standpoint.  Every  generation  of  judges 
restates  a  large  part  of  it  from  their  standpoint.  Leg- 
islation is  always  affecting  the  "  common "  or  cus- 
tomary law.  Legal  procedure,  in  both  English  and 
American  courts,  has  been  made  far  simpler  during  the 
past  half  century.  More  and  more  of  its  ancient  rules 
have  been  outgrown,  and  the  framing  of  better  ones 
confided  to  the  courts.  Antique  terms  of  technical  de- 
scription have  become  less  and  less  the  subject  of  study. 
All  this  has  relieved  the  law  student  of  a  heavy  burden. 

Down  to  the  last  quarter  of  the  nineteenth  century, 
the  historical  study  of  English  law  was  commonly  made 
needlessly  dry  by  paying  too  much  attention  to  what 
was  archaic  and  obsolete  in  it.  It  is  true,  as  Sir 
Walter  Scott  has  said  in  Guy  Mannering,  that  without 
a  knowledge  of  history  a  lawyer  is  a  mechanic,  instead 
of  what  he  should  be  —  an  architect.  Nevertheless 
that  knowledge  is  pushed  too  far  if  it  is  sought  to  ex- 
tend it  to  petty  details  of  ancient  tenures  or  procedure, 
which  throw  no  light  on  modern  conditions  of  legal 
theory  or  practice.  This  has  now  become  the  general 
rule  of  practice  in  American  law  schools,  and  the  stu- 


16         THE    YOUNG    MAN    AND    THE    LAW 

dent  is  no  longer  forced  to  spend  his  mind  on  such  books 
as  Coke  on  Littleton  or  Chitty  on  Pleading.  In  fact, 
in  this  country  they  never  had  the  place  held  by  them  in 
England. 

The  American  lawyer,  viewed  as  an  architect,  has  also 
had  the  advantage  of  new  opportunities  for  the  study 
of  comparative  law.  A  bureau  of  the  American  Bar 
Association  has  been  created  to  promote  it.  The  truth 
is  more  widely  recognized  of  Savigny's  position  that 
the  law  of  every  country  is  part  of  the  life  of  the  nation, 
inhering  in  its  very  body,  and  not  to  be  taken  off  or  put 
on  like  a  new  garment,  at  pleasure. 

History  and  tradition  are  near  of  kin.  The  bar  has 
its  uplifting  traditions,  with  which  all  who  enter  it  are 
expected  to  be  acquainted.  As  Professor  Wigmore  has 
said,  they  affect,  to  a  lawyer,  the  "  whole  atmosphere  of 
life's  behavior." 

But  history  is  only  one  of  the  branches  of  science  that 
lawyers  must  cultivate.  Rhetoric  and  logic  are  two 
others,  whether  studied  in  their  technical  forms,  or  sim- 
ply in  outline  as  universal  tools  of  argumentation. 
Ability  to  make  a  clear  statement,  to  reason  well,  and  to 
detect  the  fallacies  put  forward  by  another,  is  the  best 
passport  to  success  for  a  true  lawyer. 

President  John  Adams,  writing  in  1800  to  his  son 
Thomas,  who  had  recently  been  admitted  to  the  bar, 
gives  him  this  sound  advice : 

"  I  always  rejoice  to  hear  of  your  Arguing  Cases.  This 
Arguing  is  the  way  to  business.  Argue;  Argue;  Argue; 
forever  when  you  can,  and  never  be  concerned  about  the 


ATTRACTIONS    OF    THE    PROFESSION        17 

issue,  any  further  than  you  ought  to  interest  yourself  for 
truth  and  Justice.  If  you  Speak  in  public  though  you  lose 
your  cause,  it  will  serve  your  reputation,  if  you  Speak 
well,  as  much  as  if  you  gained  it.  Hard  Study  and  close 
Application  to  Business  will  infallibly  increase  your  Busi- 
ness till  it  is  Commensurate  with  your  Necessities  and 
affords  you  a  Surplus.  Science  and  Literature  will  assist 
your  reputation  as  much  as  law."  : 

Law  has  certain  points  in  common  with  mathematics. 
It  proceeds  from  axiomatic  assertions,  called  maxims. 
They  are  too  short  to  be  universally  true.  But  so  far 
as  they  are  true,  they  form  an  irresistible  major  prem- 
ise, when  the  facts  to  which  they  apply  constitute  the 
minor  one. 

It  is  a  frequent  task  for  a  lawyer  to  exclude  them 
from  the  position  of  a  legal  premise,  because  they  really 
are  a  statement  of  a  rule  of  morals,  only.  The  law  has 
no  remedy  for  the  violation  of  a  moral  right  unless  it  be 
also  the  violation  of  a  legal  right.  Otherwise  it  belongs 
only  to  conscience  or  social  opinion  to  prescribe  the 
penalty.  Law  falls  short  of  honor.  She  does  not  try 
to  force  men  to  be  virtuous.  Non  omne  quod  licet  hon- 
estum  est.2 

A  maxim  may  also,  when  carefully  analyzed,  prove  to 
be  meaningless  as  applied  to  many  acts,  which  at  first 
sight  it  would  seem  to  govern.  Sic  utere  tuo  ut  alienum 
won  laedas  is  one  of  these.  Taken  literally  it  would 
forbid  any  injury  to  another's  property.  I  may  own  a 

i  Massachusetts  Historical  Society  Proceedings,  Vol.  XLIX,  p. 
466. 

3  Digest  of  Justinian,  Lib.  L,  Tit.  XXVII,  144. 


18         THE    YOUNG    MAN    AND    THE    LAW 

vacant  lot  between  my  house  and  my  next  neighbor's. 
It  has  never  been  built  on.  If  I  should  build  on  it,  it 
would  lessen  the  sun-light  and  fresh  air  which  he  has 
been  enjoying.  Nevertheless  the  law,  and  morality 
also,  would  not  censure  me  for  exercising  my  right,  as 
owner,  to  improve  my  property.  It  injures  my  neigh- 
bor, but  it  is  not  unjust  to  him. 

One  must  scrutinize  the  premises  in  all  argumentation. 
As  Schopenhauer  has  said,  "  It  is  not  so  easy  for  any 
one  to  think  or  draw  an  inference  contrary  to  the  laws 
of  logic;  false  judgments  are  frequent;  false  conclu- 
sions, very  rare." 

A  lawyer  uses  logic  in  coming  to  his  conclusions  in 
matters  as  to  which  he  may  be  consulted,  which  are  not 
brought  before  a  court.  He  uses  "  Dialectic "  in 
arguing  as  to  the  law  affecting  such  matters.  Logic  is 
used  to  get  at  the  truth.  Dialectic  he  engages  in  to 
obtain  from  a  judicial  authority  a  decision  of  disputed 
points  in  favor  of  his  client.  The  lawyer  in  a  dialec- 
tical controversy  often  does  not  himself  know  whether 
his  client  is  in  the  right  or  not.  He  often  believes  that 
he  is  and  is  mistaken.  The  lawyer  on  each  side  often 
believes  that  his  client  is  in  the  right.  "  Truth  is  in 
the  depths."  It  is  the  business  of  the  advocate  to 
ascertain  it,  if  he  can ;  but  he  need  not  be  disappointed 
if  he  often  fails.  The  just  cause  however  is  seldom  lost, 
if  it  is  carried  to  a  court  of  last  resort.  Milton  was 
right  when  he  said : 

i  Schopenhauer,  The  Art  of  Controversy,  etc.    Translated  by  T. 
Bailey  Saunders,  London,  1896,  pp.  7,  11, 


ATTRACTIONS    OF    THE    PROFESSION        19 

"  Who  ever  knew  truth  put  to  the  worst  in  a  free  and 
open  encounter?  For  who  knows  not  that  Truth  is  strong 
next  to  the  Almighty?  She  needs  no  policies,  no  strata- 
gems to  make  her  victorious.  These  are  the  shifts  that 
Error  uses  against  her  power." 

There  is  nothing  higher  or  better,  open  to  human 
effort,  than  the  administration  of  justice  and  right  be- 
tween man  and  man,  and  between  man  and  the  State. 
There  may  be  at  times  a  right,  the  exercise  of  which 
leads  to  seeming  injustice.  It  bears  hard  on  some 
particular  man;  but  it  is  because  he  has  in  some  way 
put  himself  in  a  false  position.  The  inmost  spirit  of 
the  law  is  the  rule  of  right,  and  the  great  office  of  the 
lawyer  and  the  judge  is  to  enforce  it. 

Albert  Hallcr's  parents  desired  him  to  study  law. 
He  refused  because,  says  one  of  his  contemporaries,  "  his 
active  mind  could  not  submit  to  follow  a  profession 
which  would  limit  his  inquiries ;  which  entirely  depended 
on  precedent  and  authority ;  and  which,  to  use  his  own 
quotation  from  Horace,  in  a  letter  to  his  friend  Bonnet, 
obliged  him  '  Jurare  m  verba  magistri.'  ' 

This  was  a  false  conception  of  a  lawyer's  studies,  two 
hundred  years  ago,  and  there  would  be  still  less  reason 
for  holding  it  now.  In  determining  what  is  the  rule  of 
right,  in  any  particular  case,  there  is  often  occasion  for 
a  resort  to  a  philosophical  inquiry  into  the  causes  of 
things.  Lord  Chief  Justice  Mansfield  brought  into  the 
common  law  many  of  the  rules  laid  down  by  the  jurists 
whose  opinions  gave  its  form  to  the  Roman  law  as  Jus- 
tinian left  it.  Nor  did  this  great  judge  stop  short  with 


20         THE    YOUNG    MAN    AND    THE    LAW 

Rome.  In  his  discourse  on  taking  his  seat  as  Chief  Jus- 
tice, he  said  that  Socrates  was  "  the  great  lawyer  of 
antiquity,  since  the  first  principles  of  all  law  are  derived 
from  his  philosophy." 

Those  who  have  reached  an  advanced  point  in  the 
pursuit  of  any  department  of  science  soon  perceive  that 
the  acquisition  of  further  knowledge  of  it  consists  less 
in  gaining  new  notions  or  learning  new  facts  than  in 
gaining  a  better  perception  of  the  relations  between 
those  which  we  already  possess.  Here  the  Socratic 
method  of  learning  appeals  strongly  to  a  scholarly 
lawyer.  What  is  his  relation  to  the  State?  What 
does  he  owe  it  ?  What  does  it  owe  him  ? 

Such  questions  of  obligation  under  existing  laws  and 
institutions  are  of  deep  interest  to  every  man,  but  es- 
pecially to  one  like  a  lawyer,  who  stands  in  a  quasi- 
public  position  of  official  responsibility.  They  are  sub- 
jects to  understand  the  bearings  of  which  clearly  a  man 
might  profitably  study  law,  though  never  meaning  to 
practice  it. 

There  is  a  kind  of  legal  scholarship  which  wastes 
itself  by  diffusion,  and  culminates  in  vague  and  uncer- 
tain generalities.  Some  one  has  said  that  an  interest  in 
general  ideas  is  apt  to  mean  an  absence  of  particular 
knowledge.  It  was  sarcastically  remarked  of  Lord 
Brougham  that  he  knew  something  of  the  laws  of  every 
country  except  his  own.  Such  criticisms  are  seldom 
just.  In  Brougham's  case  they  certainly  were  not. 
The  best  lawyers  are  those  who  are  capable  of  taking 
the  widest  views,  and  understand  a  subject  from  the 


ATTRACTIONS    OF    THE    PROFESSION        21 

bottom  up.  The  science  which  they  profess  drives 
them  towards  a  philosophic  method  of  inquiry.  They 
must  gain  the  power  of  analyzing,  of  distinguishing,  of 
combining. 

The  pandects  of  Justinian  commence  with  stating 
the  office  of  a  lawyer.  "  Law,"  it  is  said,  "  is  the  art 
of  what  is  good  and  equitable,  of  which  lawyers  are  de- 
servedly called  the  priests,  for  they  cultivate  justice 
and  profess  a  close  knowledge  of  what  is  good  and 
equitable,  separating  the  equitable  from  the  inequitable ; 
distinguishing  the  lawful  from  the  unlawful ;  desiring  to 
make  men  good,  not  only  from  fear  of  punishment,  but 
also  the  influence  of  rewards ;  maintaining,  if  I  err  not, 
a  true,  not  a  pretended  philosophy."  * 

Whether  law  is  to  be  regarded  as  in  its  origin  "  the 
conscious  command  of  a  supreme  authority,  or  an  un- 
conscious growth  in  the  life  of  human  society,"  2  or  as 
proceeding  from  both  united,  is  one  of  those  questions 
which  will  invite  the  attention  of  all  law  students  of  a 
philosophic  turn  of  mind. 

It  might  at  first  sight  seem  that  philosophy  had  little 
to  do  with  legal  procedure.  But  the  theory  of  proced- 
ure at  each  stage,  can  only  be  understood  by  studying 
its  relation  to  the  history,  theology,  metaphysics,  logic 
and  psychology  of  the  times  in  which  it  came  to  prevail. 
Its  roots  run  deep,  as  all  will  find,  who  try  to  substi- 
tute something  that  they  deem  better.  The  forms  of 
pleading  have  been  in  all  earlier  societies  the  creator 

1  Dig,  Lib.  I,  Tit.  I,  de  Justitia  et  Jure,  §  1. 

2  Carter,  Law,  its   Origin,   Growth,  and  Function,   New  York, 
1907,  p.  vii. 


22         THE    YOUNG    MAN    AND    THE    LAW 

and  definer  of  legal  rights.  Of  the  rules  of  evidence 
some  have  through  long  ages  been  the  creators  of 
wrongs.  It  has  been  said  that  proof  is  the  daughter  of 
doubt,  and  the  mother  of  verity.  It  has  too  often  been 
mother  to  the  exclusion  of  truth  and  the  condemnation 
of  innocence.  The  reasons  for  changes  of  procedure 
made  in  the  past  call  for  close  examination,  were  it 
only  to  assist  in  determining  whether  further  changes 
are  needed  now. 

Law  has  two  aspects.  It  is  an  abstract  study.  It  is 
also  a  practical  art.  Those  who  propose  to  make  it 
their  profession  ought  to  examine  it  in  both  lights,  but 
they  must,  at  all  events,  seek  to  acquaint  themselves 
with  its  vital  characteristics,  as  they  appeal  to  the 
mind  and  heart. 

What  is  fundamental  and  permanent  in  law  is  most 
worth  attention,  because  it  is  either  the  best  of  human 
achievements,  or  the  best  endowment  of  the  human  race. 
We  may  call  it  the  law  of  nature,  or  we  may  give  it  a 
name  of  less  dignity  and  look  upon  it  not  as  a  discovery 
of  something  originating  in  a  higher  power,  but  simply 
as  a  happy  invention  of  men.  In  either  case  it  repays 
the  closest  study:  in  either  it  demands  our  reverential 
regard. 

Reverence  for  what  we  feel  to  be  superior  to  ourselves 
is  one  of  the  greatest  qualities  of  national  life.  It  may 
take  the  shape  of  reverence  for  God ;  for  the  head  of  the 
State;  for  a  military  superior;  for  a  superior  in  wis- 
dom ;  for  ancestors ;  for  age ;  for  ancient  institutions. 
For  us  in  the  United  States,  reverence  —  aside  from 


ATTRACTIONS    OF    THE    PROFESSION 

that  for  the  divine  —  is  best  bestowed  on  what  governs 
us  —  laws,  not  men. 

It  is  a  great  thought  for  a  lawyer,  and  one  never  to 
be  forgotten,  that  his  office  binds  him  and  enables  him 
to  promote  reverence  for  law.  That,  as  Lincoln  once 
said,  should  be  "  the  political  religion  of  the  nation."  1 
If  any  of  our  laws  prove  unjust  or  unsuited  to  the 
times,  it  is  easy  for  us  to  repeal  them;  but  while  they 
stand,  it  is  the  high  office  of  the  lawyer  to  see  that  they 
are  respected  and  obeyed. 

Our  common  law  is  a  glorious  inheritance.  Its  prin- 
ciples and  history  give  a  renewing  power  of  adaptation 
to  changing  circumstances.  The  task  of  the  nineteenth 
century  was  the  definition  and  the  spread  of  political 
liberty.  That  of  the  twentieth  is  the  definition  and  the 
spread  of  political  justice. 

Governor  Andrew  of  Massachusetts,  in  describing  the 
inherent  vitality  of  the  common  law,  observed  that  one 
might  say  of  it,  as  the  author  of  the  Epistle  to  the 
Hebrews  said  of  a  priest  after  the  order  of  Melchisedec, 
that  it  was  "  made  not  after  the  law  of  a  carnal  com- 
mandment, but  after  the  power  of  an  endless  life."  2 

Reverence  for  law  is  a  guaranty  of  good  conduct. 
Wherever  it  is  predominant  as  a  national  trait,  it  makes 
for  social  order.  The  lawyer  who  feels  such  a  rever- 
ence will  be  unwilling  to  advise  what  the  law  does  not 
sanction,  and  quick  to  see  whether  his  client's  position 
is  compatible  with  it.  He  is  himself,  also,  as  an  individ- 

1  Hill,  Lincoln  the  Lawyer,  New  York,  1906,  p.  44. 

2  Hebrews,  Ch.  VII,  16. 


24         THE    YOUNG    MAN    AND    THE    LAW 

ual,  restrained  by  the  influence  of  his  legal  training 
from  acts  of  violence.  If  he  is  wronged,  and  satisfac- 
tion be  refused,  he  knows  that  the  proper  remedy  to  re- 
claim his  legal  rights  is  by  process  of  law.  If  his  client 
is  wronged,  he  will  advise  that  course  to  him.  "  Nee 
juri  quidquam  tarn  inimicum  quam  vis;  nee  equitati 
quidquam  tarn  infestum  est  quam  convocati  homines  et 
armati."  x 

It  has  been  said  by  Professor  Jacks  that  there  is  a 
point  in  the  high  development  of  the  human  mind,  at 
which  reason  falls  under  the  law  of  diminishing  returns. 
The  output  lessens,  or  at  least  increases  more  slowly. 
But  this  can  never  be  asserted  of  an  expansion  of  what 
belongs  to  the  heart  of  man.  And  here  the  young  man 
at  the  bar  may  exert  a  power  greater  than  his  elders. 
His  feelings  are  fresher  and  more  at  his  command.  We 
have  Burke's  authority  for  saying  that  the  reasoning 
powers  also  are  stronger  in  youth,  though  the  lack  of 
knowledge  to  work  upon  is  too  small  to  make  any  great 
show  with.  How  can  the  young  lawyer  excel  in  seeing 
or  stating  the  relations  of  men,  when  he  knows  from  per- 
sonal experience  so  little  as  to  the  facts  out  of  which 
these  relations  come?  On  the  other  hand,  the  kingdom 
of  the  heart  is  open  to  him,  and  the  opportunity  of 
touching  the  hearts  of  others  with  his  stories  of  a 
client's  wrongs.  Here  the  American  bar  has  one  ad- 
vantage over  that  of  the  Continent  of  Europe  though 

i  Cicero,  Oratio  pro  A .  Ccecina,  Cap.  XI :  "  Nor  is  anything 
so  inimical  to  law  as  using  force;  nor  anything  so  hostile  to 
equity  as  an  assembly  of  armed  men." 


ATTRACTIONS    OF    THE    PROFESSION       25 

not  an  unmixed  one,  in  our  system  of  trial  by  jury  in 
both  civil  and  criminal  causes.  It  brings  the  advocate 
in  close  touch  with  the  people.  It  teaches  him  psychol- 
ogy, and  gives  them,  after  listening  to  whatever  he  may 
say,  a  direct  share  in  the  government  of  the  country. 

There  was  some  truth  in  the  sally  of  Home  Tooke, 
when  on  trial  in  1788,  for  refusing  to  pay  the  costs  of 
vexatiously  contesting  the  election  to  the  House  of 
Commons  of  Charles  James  Fox.  "  There  are  three 
efficient  parties  engaged  in  this  trial,"  he  declared,  in 
arguing  his  own  cause.  "  You,  gentlemen  of  the  jury, 
Mr.  Fox  and  myself,  and  I  make  no  doubt  that  we  shall 
bring  it  to  a  satisfactory  conclusion.  As  for  the  judge 
and  the  crier,  they  are  here  to  preserve  order;  we  pay 
them  handsomely  for  their  attendance,  and  in  their 
proper  sphere  they  are  of  some  use ;  but  they  are  hired 
as  assistants  only;  they  are  not  and  never  were  in- 
tended to  be  the  controllers  of  our  conduct."  1 

More  than  anything  else,  trial  by  jury  keeps  the  art 
of  oratory  alive.  Cicero  said  that  orators  were  the 
smallest  class  in  any  community,  and  rarer  than  poets. 
It  might  almost  be  said  that  we  should  have  none  in  the 
United  States  were  it  not  for  the  triumphs  of  the 
bar. 

Oratory  is  the  child  of  feeling.  The  born  orator  is 
a  sentimentalist,  and  every  lawyer  who  wishes  to  shine 
as  a  public  speaker  must  cultivate  the  faculty  of  forci- 
bly expressing,  on  fit  occasions,  whatever  of  native  sen- 

i  Campbell,  Lives  of  the  Chief  Justices,  Boston,  1873,  Vol.  IV, 
p.  76. 


26         THE    YOUNG    MAN    AND    THE    LAW 

timent  may  serve  to  give  life  and  strength  to  what  he 
says. 

William  H.  Seward,  a  day  or  two  after  Lincoln  had 
read  to  him  his  first  inaugural  message,  said  of  his  chief 
that  he  had  "  a  curious  vein  of  sentiment  running 
through  his  thought,  which  is  his  most  valuable  mental 
attribute."  1  It  was  this  that  gave,  two  years  later,  an 
eternal  charm  to  the  Gettysburg  oration. 

But  the  oratory  that  might  move  a  jury  may  weary  a 
judge.  The  bar  of  every  appellate  court,  and  of  every 
other  court  proceeding  without  a  jury,  is  a  training 
school  in  the  art  of  concise  statement.  It  involves  sift- 
ing a  controversy  down  to  what  is  really  material,  and 
then  sifting  the  words  down  in  which  that  is  to  be  pre- 
sented to  the  court. 

Dean  Swift  says,  in  his  Tale  of  a  Tub,  that  "  the 
society  of  writers  would  quickly  be  reduced  to  a  very 
inconsiderable  number,  if  men  were  put  upon  making 
books,  with  the  fatal  confinement  of  delivering  nothing 
beyond  what  is  to  the  purpose."  The  satire  is  half 
true,  but  lawyers  have  the  satisfaction  of  exercising  a 
profession  in  which  such  a  confinement  is  the  inexorable 
rule  of  argumentation  for  all.  A  speech  to  a  jury  must 
conform  to  that,  as  fully  as  one  made  to  a  judge,  al- 
though more  time  and  more  words  may  be  necessary  to 
impress  a  thought  or  proposition  upon  twelve  men  than 
upon  one.  The  aim  of  argument  must  be  to  make  the 
dullest  juror  understand  the  line  of  reasoning  which  is 
put  forward.  But  even  for  juries  a  lawyer  soon  learns 

i  Charles    Francis    Adams,    An   Autobiography,    Boston,    1916, 
p.  96. 


ATTRACTIONS    OF    THE    PROFESSION       27 

the  advantages  of  brevity  in  speech.  To  attain  it  he 
must  spare  no  pains  to  emphasize  to  himself  the  prin- 
cipal matters  to  be  presented,  and  to  determine  how  to 
put  them  forward  in  proper  order.  He  must  study 
condensation.  Every  case  that  he  tries  can  and  should 
help  him  to  try  the  next  better. 

To  argue  cases  with  the  greatest  effect,  the  speaker 
must  dwell  only  on  the  main  points.  The  successful 
lawyer  soon  learns  this.  It  makes  his  success. 

John  Bright  once  compared  his  own  methods  with 
Gladstone's,  thus :  "  When  I  speak  I  strike  across  from 
headland  to  headland.  Mr.  Gladstone  follows  the  coast 
line ;  and  when  he  comes  to  a  navigable  river  he  is  unable 
to  resist  the  temptation  of  tracing  it  to  its  source." 

What  a  man  is  determines  what  he  says.  No  one  can 
rise  to  the  highest  ranks  of  the  legal  profession  who  is 
not  honest  at  heart.  One  of  Carlyle's  wise  sayings,  in 
Past  and  Present,  is  this :  "  How  can  a  man,  without 
clear  vision  in  his  heart  first  of  all,  have  any  clear  vision 
in  the  head.  It  is  impossible." 

Be  it  possible  or  not  with  other  men,  it  is  certainly 
impossible  for  the  lawyer.  His  work  is  to  determine 
what  justice  is  between  man  and  man.  For  this  he  must 
have  a  clear  notion  of  the  principles  of  justice.  They 
generally  will  be  found  to  furnish  the  standards  for 
judging  of  his  client's  claim. 

But  law  is  not  the  science  of  rights.  It  is  the  sci- 
ence of  enforceable  rights.  It  teaches  the  rules  of 
human  conduct,  which  the  State  deems  imperative.  Its 
study  is  helpful  to  those  who  engage  in  it  simply  as  a 


28    THE  YOUNG  MAN  AND  THE  LAW 

matter  of  mental  and  moral  discipline.  It  marks,  to  a 
large  degree,  the  limits  both  of  personal  and  social  duty. 

Jean  Jacques  Rousseau  has  said  that  "  the  man  and 
the  citizen,  whosoever  he  may  be,  has  no  other  kind  of 
property  to  put  into  society  than  himself:  all  his  other 
property  is  there  despite  him."  x  But  how  best  does 
one  give  himself?  Certainly  after  learning  first  what 
he  owes,  under  existing  laws.  He  must  pay,  before  he 
gives.  He  can  give  only  what  remains  after  his  legal 
obligations  are  discharged.  Any  inquiry  as  to  what 
those  are,  in  a  novel  and  doubtful  case,  is  an  invitation 
to  examine  the  remotest  foundations  for  their  support. 
A  lawyer  has  an  opportunity  in  this  for  independent 
and  original  research  such  as  seldom  comes  to  those  in 
other  professions.  It  is  part  of  his  proper  preparation 
for  the  formation  of  an  opinion  or  the  argument  of  a 
cause,  and  consequently  the  time  spent  upon  it  is, 
within  reasonable  limits,  a  legitimate  subject  of  charge 
against  his  client. 

Burke  said  of  law  that  it  is  "  a  science  that  does  more 
to  quicken  and  invigorate  the  understanding,  than  all 
other  kinds  of  learning  put  together."  But  he  said 
also  that  "  it  is  not  apt,  except  in  persons  happily  born, 
to  open  and  liberalize  the  mind  exactly  in  the  same 
proportion."  Be  this  as  it  may,  every  lawyer  is  urged 
on  by  powerful  considerations  of  business  interest  to 
broaden  his  views  not  only  by  metaphysical  studies,  but 
by  seeking  a  wider  acquaintance  with  general  literature. 

In  examining  witnesses  and  dealing  with  judges  and 
Emile,  1772,  Vol.  II,  p.  108. 


ATTRACTIONS    OF    THE    PROFESSION       29 

juries  he  needs  to  be  a  close  and  quick  student  of  their 
mental  characteristics.  He  must  know  more  than  most 
men  of  the  course  of  human  conduct  in  respect  to  per- 
sonal rights  and  wrongs.  Reading  good  novels  or 
poetry  is  not  a  bad  way  of  studying  psychology  and 
acquiring  the  ability  to  put  himself  in  another's  place. 

Another  educative  force  to  a  lawyer  is  his  special 
opportunities  to  take  part  in  shaping  policies  of  legis- 
lation. There  are  few  laws  that  do  not  come  from  a 
lawyer's  pen.  There  are  fewer  still  that  do  not  owe 
their  enactment  to  a  lawyer's  influence.  The  maker  of 
a  legal  change  feels  the  dignity  of  his  position.  For 
all  men,  as  Mr.  Lecky  has  observed,  there  is  a  strong 
educational  influence  in  legislation.  The  lawyers  who 
frame  or  execute  it  naturally  are  the  ones  to  profit  by 
this  influence  most,  and  most  promptly.  It  gives  them 
a  better  appreciation  of  what  law  is  and  what  it  ought 
to  be.  It  leads  to  authorship  in  a  congenial  field  all 
the  more  effective  because  it  is  of  an  unambitious  kind. 
The  lawyers  have  short  avenues  to  the  public  mind  in 
magazine  articles  or  newspaper  interviews,  and  many 
take  advantage  of  them. 

"  Men  whose  professional  duties  would  render  it  impos- 
sible for  them  to  write  long  books,  are  quite  capable  of 
treating  philosophical  subjects  in  the  form  of  short  essays, 
and  have  in  fact  become  conspicuous  in  these  periodicals." 

This  fact,  according  to  Lecky,  tends  to  promote  the 
spread  of  utilitarian  philosophy,  which  he  deems  the 
basis  of  legislation.1 
i  Lecky,  History  of  European  Morals,  London,  Vol.  I,  p.  131. 


30         THE    YOUNG    MAN    AND    THE    LAW 

As  the  lawyer  may  gain  cultivation  by  helping  to 
make  law,  so  he  may  gain  it  by  opposing  the  adoption 
of  laws  which  is  urged  by  others.  He  can  see  better 
than  the  members  of  any  other  class  in  the  community 
the  effects  of  an  ill  considered  piece  of  legislation,  and 
there  is  no  American  legislature  that  does  not  have 
before  it  many  projects  of  that  kind.  The  people,  to 
some  extent,  have  a  right  to  rely  on  the  bar  to  call 
attention  to  the  objections  which  they  perceive  in  them. 

James  C.  Carter  has  thus  alluded  to  this  duty  and 
power  of  the  bar  in  some  of  these  respects : 

"  Among  the  evils  which  oppress  society,  there  are  few 
greater  than  that  caused  by  legislative  expedients  under- 
taken in  ignorance  of  what  the  true  nature  and  function  of 
law  are,  and  the  effective  remedy  —  at  least,  there  is  no 
other  —  lies  in  an  effort  to  correct  this  ignorance  by  knowl- 
edge." * 

3.  The  Opportunities  of  the  Lawyer  for  Public  Service 
and  Social  Advancement 

Public  service  a  natural  duty.  The  lawyer  is  officially  always 
a  public  servant.  The  necessity  for  a  legal  profession.  The  law- 
yer, a  speaking  statute.  His  natural  opposition  to  absolute 
power.  His  function  as  an  interpreter  of  laws.  His  altruistic 
work,  as  a  public  defender.  His  place  in  court.  His  place  as  a 
peace-maker.  His  place  as  a  ruler;  and  as  a  framer  of  legisla- 
tion. Preventive  legislation.  The  lessening  of  the  lawyer's  social 
influence  since  de  Tocqueville  wrote. 

Oliver  Cromwell,  in  writing  as  to  the  studies  which  he 
wished  his  son  to  pursue,  said  that  mathematics  and 

i  Carter,  Law,  its  Origin,  Growth  and  Function,  p.  4. 


ATTRACTIONS    OF    THE    PROFESSION       31 

history  should  be  among  them,  "  for  such  studies  may 
fit  him  for  public  services,  unto  which  every  man  is 
born."  * 

The  lawyer  belongs  to  a  profession  which  has  made 
the  most  of  this  birthright,  or  rather,  let  us  say,  of  this 
natural  duty.  Every  member  of  it,  as  has  been 
explained  in  the  first  section  of  this  chapter,  is  actually 
in  the  public  service.  He  adopts  the  profession  with 
this  in  view.  He  knows  that  it  has  been  created  and 
privileged,  presumably  for  the  public  good.  A  dis- 
tinguished member  of  the  New  Jersey  bar  (Courtlandt 
Parker),  in  an  address  given  in  1881  before  the  Law 
School  of  Columbia  University,  said  that  "  the  motive 
for  the  practice  of  law  —  the  controlling  and  directing 
motive  —  should  be  a  desire  of  usefulness  to  our  fellow- 
men,  in  the  capacity  of  a  minister  of  justice,  a  manager, 
and  a  part  of  the  machinery  of  civilized  society."  This 
machinery  is  always  running.  The  workshop  of  the 
State  is  open,  day  and  night.  The  lawyer's  part  in  it 
is  not  determined  by  what  he  does  visibly  in  the  public 
eye.  Coleridge  was  wrong  when,  in  his  Table  Talk,  he 
declared  that  law  is  a  profession  inferior  to  the  ministry 
because  it  is  only  necessary  for  some  at  some  times, 
while  the  minister's  work  is  addressed  to  something 
necessary  for  all,  at  all  times.  It  is  necessary  for  all  at 
all  times  that  the  forces  for  good  government  should  be 
maintained  everywhere  in  full  and  constant  action. 
The  uses  and  opportunities  of  the  legal  profession  are 

i  MSS.  letter  owned  by  John  Forster,  Letters  of  Charles  E. 
Norton,  Boston,  1913,  Vol.  I,  p.  331. 


THE  YOUNG  MAN  AND  THE  LAW 

not  to  be  measured  by  what  it  does  actively,  so  much 
as  by  what  it  does  passively  and  unobserved. 

It  assures  the  people  that  an  agency  of  a  public  char- 
acter exists  which  is  always  near  at  hand  and  ready  to 
assure  a  public  remedy  for  any  private  wrongs.  If  in  a 
country  like  ours  there  were  no  lawyers,  there  would  be 
no  safety  for  business  enterprise,  and  little  personal 
security.  In  these  directions  every  lawyer  is  worth 
ten  policemen.  He  exists  to  protect  the  social  order. 
His  usefulness  to  the  community  therefore  reaches  far 
beyond  the  particular  sphere  of  his  professional  efforts. 
It  lies  primarily,  if  not  mainly,  in  his  being  one  of  a 
class  always  standing  ready  to  serve  the  public  in 
securing  the  benefits  of  living  under  the  rule  of  law. 

The  good  of  a  policeman  is  measured  less  by  the  num- 
ber of  arrests  which  he  may  make,  or  disorders  which  he 
may  suppress  by  his  active  interference,  than  by  his 
being  within  call,  upon  his  beat,  ready  to  intervene  for 
the  protection  of  any  legal  rights,  should  need  arise. 
The  good  of  a  lawyer  lies  in  what  he  might  do,  almost 
as  much  as  in  what  he  does.  The  bar,  by  his  presence 
in  it,  is  or  ought  to  be  a  better  agency  for  maintaining 
the  interests  of  justice.  He  makes  the  battalions 
heavier  that  are  readier  to  act,  when  those  interests  are 
imperiled. 

Law  moves  with  irresistible  force,  but  it  must  first  be 
set  in  motion  by  somebody,  and  by  somebody  whose 
business  it  is  to  do  this. 

Cicero  quotes  as  a  proverbial  saying  in  his  day,  that 
the  magistrate  is  a  speaking  statute,  but  a  statute  is  a 


ATTRACTIONS    OF    THE    PROFESSION       83 

silent  magistrate.1  So  a  statute  with  us  would  remain 
silent,  were  it  not  for  the  courts  and  for  the  lawyers  who 
start  them  going,  and  see  that  they  do  their  work 
despite  all  impediments. 

When  Peter  the  Great  made  his  round  of  personal 
observation  to  ascertain  what  modern  government 
seemed  to  be  and  could  accomplish,  nothing  surprised 
him  more  than  the  numbers  and  the  privileges  of  the 
English  bar.  There  were,  he  told  one  of  his  informants, 
only  two  lawyers  in  all  Russia,  and  he  proposed  to  hang 
them  on  his  return.  From  his  standpoint,  that  was  no 
bad  policy.  The  lawyer  is  naturally  unfriendly  to 
absolute  power.  His  whole  work  is  conditioned  on  the 
existence  of  a  government  of  laws,  rather  than  of  men. 

Law  is  the  product  and  rule  of  civilization.  It 
may,  so  far  as  put  in  written  form,  take  the  shape  of  an 
imperial  decree,  revocable  at  the  imperial  will.  Where 
it  does,  the  lawyer's  place  is  a  subordinate  one.  But  it 
is  not  without  large  importance  there.  The  decree 
stands  till  it  is  revoked,  and  can  hardly  fail,  whatever 
it  is,  to  give  occasion  for  differences  of  opinion  as  to  its 
interpretation  and  effect. 

No  such  form  of  words  will  mean  exactly  the  same 
thing  to  every  man  whom  it  concerns.  No  kind  of 
written  document  can.  No  man  can  state  a  proposition 
which  will  convey  precisely  the  same  impression  to  every 
mind.  Each  man  has  his  own  standpoint  in  the  uni- 

i  Cicero,  De  Legibus,  Lib.  Ill,  Cap.  2.     Vereque  did,  magistra- 
tum  legem  esse  loquentemj  legem  autem,  mutum  magistratum. 


34    THE  YOUNG  MAN  AND  THE  LAW 

verse,  and  whatever  he  sees  or  hears  he  measures  from 
that.  The  interpretation  of  laws  is  the  most  important 
branch  of  hermeneutics.  It  calls  for  the  exercise  of 
careful  discrimination,  and  high  analytic  power.  It 
follows  processes  of  logic.  It  requires  large  historical 
knowledge.  It  makes  much  of  reasoning  by  analogy. 
It  is  not  only  one  particular  decree  or  legislative  act 
which  must  be  studied.  That  decree  or  statute  has 
relations  necessarily  to  the  customary  rules  of  social 
order,  which  previously  were  recognized.  What  those 
rules  were  must  be  known,  before  it  can  be  determined 
whether  the  new  act  of  the  lawgiver  has  affected  their 
operation,  and  what  was  the  real  mischief  that  this  act 
was  designed  to  remedy.  Non  ex  regula  jus  sumatur, 
sed  ex  jure  quod  est  regula  fit. 

In  civilized  countries  differences  of  opinion  as  to  the 
interpretation  and  character  of  laws  are  commonly 
decided  by  the  courts.  Their  advice  is  seldom  asked 
in  advance.  It  is  seldom  given  in  the  shape  of  a  public 
declaration,  addressed  to  any  of  the  political  depart- 
ments or  officials.  It  is  made  in  the  course  of  a  law 
suit  between  private  individuals  or  between  the  govern- 
ment and  a  private  individual  whom  the  government  is 
prosecuting.  It  is  not  made  till  all  the  parties  to  the 
action  have  had  a  fair  opportunity  to  be  heard,  on 
every  question  involved. 

To  give  such  an  opportunity  the  employment  of 
lawyers  is  almost  necessary.  A  scientific  inquiry  can 
only  be  advantageously  pursued  by  a  scientist.  The 


ATTRACTIONS    OF    THE    PROFESSION       35 

lawyer,  if  competent  for  his  office,  is  a  scientist  in  his 
work  of  interpreting  and  applying  the  laws. 

In  free  governments,  therefore,  he  is  commonly  in- 
vested with  what  may  fairly  be  called  a  public  office  by 
virtue  of  his  profession.  It  entitles  him  to  be  heard  in 
behalf  of  others  in  the  courts  before  which  he  practices. 
No  one  else  can  be  heard  except  the  parties  themselves ; 
and  the  parties  seldom  venture  to  avail  themselves  of 
this  right.  One  in  that  position  cannot  take  in  the 
view-point  of  the  other  party,  or  even  of  the  court  and, 
where  he  can,  he  has  not  had  the  training  which  enables 
him  to  appreciate  what  conclusions  it  involves.  The 
common  experience  of  mankind  is  expressed  by  the 
proverb  that  he  who  is  his  own  lawyer  has  a  fool  for 
his  client. 

The  lawyer  in  court  is  always  speaking  for  others, 
less  able  than  he  to  explain  their  rights.  He  is,  indeed, 
a  sworn  altruist.  His  oath  of  office  binds  him  to  render 
his  best  services,  if  assigned  to  that  duty  by  the  court, 
as  a  public  defender  of  prisoners  in  the  dock,  who  are 
without  means  to  employ  counsel.  He  has  a  knightly 
profession.  Whether  paid  or  unpaid  for  what  he  does, 
he  is  every  day  fighting  other  people's  battles. 

The  Romans  did  not  hesitate  to  put  forward  this 
fighting  quality  of  the  lawyer  —  this  fighting  for  other 
men  —  as  his  great  and  true  title  to  public  regard.  As 
they  state  it  in  their  Code : l  "  Advocates  who  decide 
the  doubtful  fates  of  causes  and  by  the  strength  of  their 

i  Code  of  Justinian,  Lib.  II,  Tit.  7. 


26         THE    YOUNG    MAN    AND    THE    LAW 

defense  often  set  up  again  that  which  had  fallen,  and 
restore  that  which  was  weakened,  whether  in  public  or 
in  private  concerns,  protect  mankind  not  less  than  if 
they  saved  country  and  home  by  battle  and  by  wounds. 
For  in  our  warlike  empire  we  confide  not  in  those  alone 
who  contend  with  swords,  shields  and  breastplates,  but 
in  advocates  also,  for  those  who  manage  others'  causes 
fight  as,  confident  in  the  strength  of  glorious  eloquence, 
they  defend  the  hope  and  life  and  children  of  those  in 
peril." 

A  Spanish  proverb  says  that  he  who  has  heard  only 
one  side  of  a  cause,  has  heard  nothing.  The  existence 
of  lawyers  makes  it  possible  and  usual  for  each  side  to 
be  properly  presented  before  the  courts.  It  is  for  this 
reason  that  the  legal  profession  is  singled  out  as  the 
only  private  one  whose  members  are  ipso  facto  sharers 
in  public  office. 

Nor  are  a  lawyer's  opportunities  for  daily  public 
service  at  all  to  be  measured  by  what  he  does  or  says  in 
the  trial  of  contested  causes.  Many  causes  are  never 
contested,  and  this  because  a  lawyer  advised  that  they 
should  not  or  could  not  be.  A  lawyer  is  largely  a 
peacemaker.  Out  of  every  dozen  claims,  that  might  be 
put  in  suit,  which  are  presented  to  him  for  counsel,  he 
will  not  be  apt  to  advise  suing  on  more  than  one  or  two. 
Lincoln  shone  as  an  advocate,  but  his  advice  to  lawyers 
was  to  keep  their  clients  out  of  court  when  they  could. 
"  Discourage  litigation,"  he  said.  "  Persuade  your 
neighbors  to  compromise  whenever  you  can.  Point  out 
to  them  how  the  nominal  winner  is  often  the  real  loser 


ATTRACTIONS    OF    THE    PROFESSION       37 

—  in  fees,  expenses,  and  waste  of  time.  As  a  peace- 
maker the  lawyer  has  a  superior  opportunity  of 
becoming  a  good  man.  There  will  always  be  enough 
business.  Never  stir  up  litigation.  A  worse  man  can 
scarcely  be  found  than  one  who  does  this." 

A  lawyer  has  a  large  opportunity  to  shape  the  course 
of  others  in  the  conduct  of  life,  and,  more  than  this, 
to  help  in  shaping  that  of  the  whole  community. 

The  positions  most  strong  men  love  best  are  those  of 
command;  next,  those  of  influence.  They  may  love 
them  because  they  minister  to  ambition,  but  oftener  it 
is  from  a  better  motive,  and  they  are  sought  mainly 
because  of  the  opportunity  they  give  to  do  good  to  other 
men  and  to  the  State. 

A  lawyer  never  commands.  He  always  influences. 
But  he  is  also  of  a  class  from  which  the  commanders  of 
society  in  the  United  States  are  always  selected.  The 
judges  are  our  real  rulers:  and  only  lawyers  can  aspire 
to  the  bench.  A  seat  there  often  comes  to  lawyers  who 
have  earned  the  favorable  regard  of  the  bar,  and  to 
few  who  have  not.  A  man's  ability  in  any  art  is  best 
understood  by  his  fellow  craftsmen  in  the  same  art. 

To  go  from  the  bar  to  the  bench  brings  a  change  of 
attitude  towards  the  law  which  most  men  find  agree- 
able. They  have  been  accustomed  to  try  to  bring 
causes  within  it;  it  is  now  for  them  to  say  what  its 
doctrines  and  limits  are,  and  how  they  shall  be  applied. 
Lord  Tenterden,  soon  after  he  was  appointed  a  Judge 

i  HOI,  Lincoln  the  kwoyer,  p.  102. 


38         THE    YOUNG    MAN    AND    THE    LAW 

of  the  Court  of  Common  Pleas,  wrote  to  a  friend  that 
he  found  the  search  after  truth  much  more  pleasant  than 
the  search  after  arguments. 

Lawyers  also  fill  most  of  the  higher  offices  in  the 
States  and  the  United  States.  They  draft  most  of  the 
laws.  They  are  generally  found  at  the  head  of  the 
political  departments.  They  are  prominent  in  consti- 
tutional conventions.  Of  the  fifty-six  signers  of  the 
Declaration  of  Independence,  twenty-five  were  lawyers ; 
of  the  fifty-five  members  of  the  Convention  which  framed 
the  Constitution  of  the  United  States,  thirty  were.  Of 
the  Presidents  of  the  United  States,  twenty-one  out  of 
twenty-six  have  belonged  to  this  profession:  so  have  a 
large  majority  of  the  senators  of  the  United  States, 
and  about  half  of  the  representatives  in  Congress.1  In 
the  State  governments  the  same  thing  is  true  of  the 
principal  officials. 

Theodore  Roosevelt  once  said  that  "  no  people  have 
permanently  amounted  to  anything  whose  only  public 
leaders  were  clerks,  politicians  and  lawyers."  One  of 
the  best  known  members  of  the  American  bar  replied  to 
this  with  perfect  truth  that  "  no  people  have  ever  per- 
manently amounted  to  anything  among  whose  leaders 
great  lawyers  were  not  conspicuous,  and  among  whom 
respect  for  the  law  was  not  a  controlling  force." 

Napoleon,  when  he  desired  to  shape  the  law  according 
to  his  own  will  and  keep  France  from  freedom,  began 
the  nineteenth  century  with  setting  up  a  privilege  on 

i  Benton,  Annual  Address  in  J$94  before  the  New  Hampshire 
State  Bar  Association,  p.  247, 


ATTRACTIONS    OF    THE    PROFESSION       39 

the  part  of  the  government  to  have  jurisdiction  over 
causes  affecting  it  or  its  officials,  taken  from  the 
ordinary  courts,  and  given  to  special  tribunals  confined 
to  that  sort  of  business.  It  kept  the  French  bar 
back  from  one  of  the  largest  opportunities  of  public 


Lawyers,  both  as  such,  and  as  legislators,  are,  as  has 
been  said  above,  often  the  framers  of  statutory  law. 
Nothing  of  human  make  has  a  higher  place  than  belongs 
to  that.  It  is  no  easy  task  to  devise  a  statute  that 
will  remedy  one  evil  without  causing  another.  What 
qualities  it  ought  to  have  are  well  depicted  by  one  of 
the  older  Spanish  writers  on  law,  Isadore  of  Seville.  A 
good  statute,  he  says,  will  be  honorable;  just;  prac- 
ticable ;  in  accord  with  nature ;  in  accord  with  the  cus- 
tom of  the  country ;  in  place  and  time  convenient ; 
necessary ;  useful ;  plain  also  that  it  contain  nothing 
through  obscurity  which  is  fallacious;  written  for  no 
private  interest,  but  for  the  common  advantage  of  the 
people.2  Few  laws  will  answer  all  these  conditions,  but 
it  ought  to  be  a  lawyer's  ambition,  and  certainly  always 
is  his  opportunity,  to  let  no  draft  of  a  statute  pass  from 
his  hands  which  does  not  approximate  to  this  lofty 

1  Dicey,  Law  of  the  Constitution,  8th  ed.,  p.  232. 

2  "  Erit  lex  honesta,  justa,  possibilis,  secundum  naturam,  secun- 
dum   patriae   consuetudinem,   loco   temporique   convenient,  neces- 
saria,    utilis,    manifesto    quoque    ne    aUquid   per    obscuritatem   in 
captionem    contineat,    nullo    privato    commodo   sed   pro    communi 
civium  utilitate  scripta."    Cited  by  Bmncken,  American  Political 
Science  Review,  Vol.  VIII,  p.  224,  n. 


40    THE  YOUNG  MAN  AND  THE  LAW 

standard.  There  will  never  be  a  time  when  the  people 
will  not  welcome  such  laws  as  conform  to  it. 

This  is  particularly  true  of  new  statutes  which  help 
courts  to  exercise  more  freely  their  preventive  powers. 
To  keep  men  from  injuring  others  is  a  much  more 
effective  way  of  maintaining  the  social  order  than  to 
wait  till  the  act  is  done,  and  then  concern  oneself  only 
with  questions  of  reparation  or  punishment. 

Much  here  remains  to  be  accomplished  by  the  Ameri- 
can lawyer.  As  has  been  well  said  by  Professor 
Pomeroy : 

"  The  ideal  remedy  in  any  perfect  system  of  administer- 
ing justice  would  be  that  which  absolutely  precludes  the 
commission  of  a  wrong;  not  that  which  awards  punishment 
or  satisfaction  for  a  wrong  after  it  is  committed."  x 

De  Tocqueville,  in  his  Democracy  in  America?  struck 
by  the  fact  that  the  members  of  the  American  bar  ranked 
particularly  high  in  the  social  scale,  gave  most  of  a 
chapter  to  the  discussion  of  the  causes.  From  this  a 
few  passages  merit  quotation  here : 

"  In  visiting  the  Americans  and  in  studying  their  laws, 
we  perceive  that  the  authority  they  have  intrusted  to  mem- 
bers of  the  legal  profession,  and  the  influence  which  these 
individuals  exercise  in  the  government,  is  the  most  power- 
ful existing  security  against  the  excesses  of  democracy.  .  .  . 

"  In  all  free  governments,  of  whatever  form  they  may 
be,  members  of  the  legal  profession  will  be  found  at  the 
head  of  all  parties.  The  same  remark  is  also  applicable 

1  Pomeroy,  Equity  Jurisprudence,  San  Francisco,  1907,  Sec.  1357. 

2  Vol.  I,  Reeves'  translation,  ed.  of  1841,  p.  297,  et  seq. 


ATTRACTIONS    OF    THE    PROFESSION       41 

to  the  aristocracy ;  for  almost  all  the  democratic  convulsions 
which  have  agitated  the  world  have  been  directed  by  nobles. 
"  A  privileged  body  can  never  satisfy  the  ambition  of  all 
its  members;  it  has  always  more  talents  and  more  passions 
than  it  can  find  places  to  content  and  to  employ;  so  that  a 
considerable  number  of  individuals  are  usually  to  be  met 
with,  who  are  inclined  to  attack  those  very  privileges, 
which  they  find  impossible  to  turn  to  their  own  account. 

"  The  people  in  democratic  states  does  not  mistrust  the 
members  of  the  legal  profession,  because  it  is  well  known 
that  they  are  interested  in  serving  the  popular  cause ;  and  it 
listens  to  them  without  irritation,  because  it  does  not 
attribute  to  them  any  sinister  designs.  The  object  of  law- 
yers is  not,  indeed,  to  overthrow  the  institutions  of  de- 
mocracy, but  they  constantly  endeavor  to  give  it  an  impulse 
which  diverts  it  from  its  real  tendency,  by  means  which  are 
foreign  to  its  nature.  Lawyers  belong  to  the  people  by 
birth  and  interest,  to  the  aristocracy  by  habit  and  by  taste, 
and  they  may  be  looked  upon  as  the  natural  bond  and  con- 
necting link  of  the  two  great  classes  of  society. 

"  If  I  were  asked  where  I  place  the  American  aristocracy, 
I  should  reply  without  hesitation,  that  it  is  not  composed 
of  the  rich,  who  are  united  together  by  no  common  tie,  but 
that  it  occupies  the  judicial  bench  and  the  bar." 

The  half  century  which  followed  the  publication  of 
Democracy  in  America,  as  Lord  Bryce  has  remarked, 
reduced  the  weight  of  the  American  bar  "  as  a  guiding 
and  restraining  power,  tempering  the  crudity  or  haste 
of  democracy  by  its  attachment  to  rule  and  precedent."  1 

Lawyers  have  also  receded,  relatively,  in  social  posi- 

i  Bryce,  American  Commonwealth,  Vol.  II,  1st  ed.,  London, 
1888,  p.  490. 


42         THE    YOUNG    MAN    AND    THE    LAW 

tion.  There  are  no  longer  but  three  professions  — 
theology,  law,  and  medicine.  The  "  captains  of  indus- 
try "  have  won  high  place.  Great  fortunes,  many  of 
them  coming  as  a  reward  of  scientific  discoveries,  have 
given  new  means  of  social  distinction.  The  higher  edu- 
cation is  shared  in  by  more.  In  the  country  and  the 
small  towns,  the  lawyers  retain  their  original  place:  in 
the  great  cities  they  are  less  frequently  the  leaders  in 
social  circles  than  in  the  time  of  de  Tocqueville. 

But  in  the  capacity  to  render  social  service  they  still 
hold  their  own;  and  social  service  is  more  and  more 
becoming  the  best  expression  of  public  service. 

4.  The  Opportunities  of  the  Lawyer  for  Making  Money 

The  bar  overcrowded,  and  always  has  been,  both  in  England 
and  the  United  States.  Incomes  of  leading  American  lawyers. 
Of  leading  English  ones.  Large  single  fees.  Contingent  fees. 
No  partnerships  of  English  barristers.  The  briefless  barrister. 
Entering  the  American  bar,  with  no  funds  to  draw  on.  Rich 
young  lawyers,  not  favorites  with  clients.  Bad  debts.  The  prizes 
of  the  profession.  Social  changes  tending  to  affect  lawyers'  fees. 
Those  of  the  country  lawyer.  Legal  Aid  societies.  Collection 
agencies.  Insurance  against  accident  claims.  Examination  of 
land  records.  The  Torrens  plan.  Title  guarantee  companies. 
Advertising  for  business. 

A  lawyer  engages  in  a  profession  which,  both  in  Eng- 
land and  the  United  States,  is  overcrowded.  Every 
calling  will  be  which  possesses  high  attractions.  The 
supply  will  always  exceed  the  demand.  One  of  the 
attractions  of  the  law  is  that  it  offers  to  those  of  suitable 
qualifications  who  enter  it  after  a  proper  preparation, 
a  reasonable  chance  of  obtaining  a  large  income  and  the 


ATTRACTIONS    OF    THE    PROFESSION        43 

probability  of  earning  an  honorable  livelihood.  Com- 
plaints that  there  are  too  many  lawyers  appear  early 
and  constantly  in  English  history.  Chief  Justice 
Fortescue,  writing  in  the  fifteenth  century,  says  that 
there  were  then  two  thousand  students  in  the  Inns  of 
Court  and  Chancery.  If  we  add  together  the  barristers 
and  the  solicitors  there  are  now  in  England  something 
like  one  for  every  1,100  of  the  population.  In  the 
United  States  the  proportion  is  about  one  to  TOO.1 

Of  the  ten  or  twelve  thousand  2  of  titular  English 
barristers,  less  than  three  thousand  were  named  in  the 
"  Law  list "  of  1909,  and  not  more  than  about  two 
thousand  have  made  any  substantial  effort  to  practice 
their  profession.  A  large  part  of  them  studied  for  the 
bar  simply  as  a  mode  of  preparation  for  a  life  of  good 
citizenship,  or  for  what  it  might  bring  of  social  position. 

As  soon  as  the  American  colonies  began  to  assume 
the  position  of  important  industrial  communities,  they 
were  well  supplied  with  both  barristers  and  attorneys 
from  England,  and  a  little  later  an  American  bar  was 
developed,  a  few  of  them  having  gone  abroad  to  learn 
their  profession  in  the  inns  of  court,  but  most  studying, 
if  at  all,  in  lawyers'  offices  here,  whereby  they  obtained 
but  a  very  imperfect  view  of  legal  science.  Instruction 
in  law  was  not  given  in  our  colleges  and  universities 
until  towards  the  closing  quarter  of  the  eighteenth 
century. 

1  Carter,  Ethics  of  the  Legal  Profession,  p.  19. 

2  In    1866    there    were    but   4,800.    Jeaff reson,   A    Book    about 
Lawyers,  London,  1867,  p.  273. 


44         THE    YOUNG    MAN    AND    THE    LAW 

In  the  seventeenth,  the  overcrowding  of  the  bar,  and 
the  indifferent  preparation  generally  made  for  it, 
occasioned  some  restrictive  legislation  in  the  older 
colonies.1 

In  1758,  John  Adams  tells  us  that  the  Boston  bar  was 
overflowing,  and  in  1766  he  writes  this  in  his  diary: 
"  Every  county  of  the  Province  swarms  with  pupils  and 
students  and  young  practitioners  of  law.  The  thought 
of  no  business  mortifies,  stings  me."  2  His  son,  the  sec- 
ond President  Adams,  found  himself  in  the  same  situa- 
tion and  from  the  same  cause,  when  he  commenced 
practice  in  Boston  in  1791. 

Jeremiah  Mason,  in  his  autobiography,  tells  us  that 
in  1788  "  the  State  of  Connecticut  was  overstocked  with 
lawyers :  most  of  them  had  little  business,  with  fees  and 
compensation  miserably  small.  The  professional  in- 
come of  Pierpont  Edwards,  supposed  to  be  the  largest 
in  the  State,  was  said  not  to  amount  to  two  thousand 
dollars  a  year.  Very  few  obtained  half  that  sum."  3 
The  Connecticut  bar  was  also  considered  as  much  too 
large  in  1823.4 

In  1782  the  bar  of  the  Colony  of  New  York  was 
thought  to  contain  too  large  a  number,  though  there 
were  only  sixteen  of  them.  Most  of  the  business  of  that 
day  was  carried  on  south  of  New  York.  Luther 
Martin  of  Maryland  had  been  making  £1,000  a  year,  at 

1  Early  Courts  and  Lawyers,  Yale  Law  Journal,  Vol.  X,  p.  384. 

2  Life  and  Works  of  John  Adams,  Boston,  1830-56,  Vol.  II,  pp. 
63,  200. 

3  Memoirs  of  Jeremiah  Mason,  Cambridge,  1873,  p.  17. 
*  Beers,  Biography  of  Roger  Minott  Sherman,  p.  31. 


ATTRACTIONS    OF    THE    PROFESSION       4«5 

the  outbreak  of  the  Revolution.1  John  Marshall,  in 
1795,  earned  $4,500,  which  was  more  than  came  to  any 
other  Virginia  lawyer.  Alexander  Hamilton  of  New 
York  City,  during  the  first  decade  of  the  next  century, 
had  a  professional  income  of  from  twelve  to  fourteen 
thousand  dollars  a  year.  Receiving  one  day  a  letter 
inclosing  $1,000,  as  a  general  retainer,  he  returned  it 
"  as  being  for  more  than  is  proper."  2  In  1816,  William 
Pinckney  of  Maryland  earned  $21,000.3 

The  first  lawyer  in  New  England  to  gain  a  practice 
of  $10,000  a  year  was  probably  Theophilus  Parsons  of 
Boston.  This  he  had  in  1806,  when  appointed  Chief 
Justice  of  Massachusetts.4  A  few  years  later  (1811), 
Joseph  Story  of  Salem  had  a  practice  of  five  to  six 
thousand  dollars  when  he  went  upon  the  bench  of  the 
Supreme  Court  of  the  United  States.5  Lemuel  Shaw 
of  Boston  had  been  making  from  fifteen  to  twenty  thou- 
sand dollars  a  year  when  in  1830  he  became  Chief  Justice 
of  Massachusetts.8  In  1821,  Reverdy  Johnson  of 
Baltimore  made  between  ten  and  eleven  thousand 
dollars.7  Daniel  Webster  earned  $13,000  in  1834, 
$15,000  in  1835,  and  $22,000  in  1836 ;  but  in  these  sums 
are  included  his  salary  as  a  Senator  of  the  United 
States.  The  largest  single  fee  he  ever  received  was 

i  Great  American  Lawyers,  Philadelphia,  1907-9,  Vol.  II,  p.  7. 

2 Life  and  Works  of  Alexander  Hamilton,  Vol.  II,  pp.  189,  190. 

3  Great  American  Lawyers,  Vol.  Ill,  p.  138. 

*  Ibid.,  p.  138. 

e  Ibid.,  p.  138. 

e  Ibid.,  p.  467. 

7  Id.,  Vol.  IV,  p.  414. 


46         THE    YOUNG    MAN    AND    THE    LAW 

$7,500.!  Benjamin  R.  Curtis  of  Boston,  in  1857,  the 
year  after  he  left  his  seat  in  the  Supreme  Court  of  the 
United  States,  earned  $38,000  from  his  profession.2 
No  other  American  lawyer  before  the  war  probably  had 
a  settled  practice  of  that  magnitude.  The  first  in  Con- 
necticut to  earn  one  of  $10,000,  net,  was  Roger  S. 
Baldwin,  in  1862. 3  The  writer  was  told  by  a  leading 
lawyer  of  New  York  City  in  1880  that  there  were  not 
then  seventy  men  at  the  bar  of  that  city,  who  were 
earning  as  much.  A  few  were  earning  much  more. 
William  M.  Evarts  was  currently  credited  with  a  steady 
income  of  $75,000.  Roscoe  Conkling  who,  after  leav- 
ing the  Senate  in  1881,  settled  in  New  York  City,  is 
reputed  to  have  made  close  to  $100,000  a  year  for  six 
years.  Lord  Bryce,  after  considerable  inquiry,  came 
to  the  conclusion  in  1888,  that  "  possibly  not  more  than 
fifteen  counsel  in  the  whole  country  make  by  their  pro- 
fession more  than  $50,000  a  year.4 

A  successful  lawyer's  fees  in  great  cases  are  generally 
overestimated.  It  was  repeatedly  said  that  Joseph  H. 
Choate  of  New  York  received  $250,000  for  arguing  the 
Income  Tax  cases  twice  before  the  Supreme  Court  of 
the  United  States.  In  fact  the  sum  was  $34,000.5 

No  incomes  of  English  barristers  have  ever  been  as 
large  as  the  largest  in  the  United  States.  The  fact  that 

1  Harvey,  Reminiscences  of  Daniel  Webster,  Boston,  1877,  p.  35. 

2  Great  American  Lawyers,  Vol.  V,  p.  450. 

*  Great  American  Lawyers,  Vol.  Ill,  p.  525. 

*  Bryce,  American  Commonwealth,  1st  ed.,  Vol.  II,  p.  490. 

5  Strong,  Life  of  Joseph  H.  Choate,  New  York,  1917,  p.  232. 


ATTRACTIONS    OF    THE    PROFESSION        47 

there  are  at  least  two  lawyers  to  be  paid  for  the  trial  of 
every  case,  the  barrister,  and  the  solicitor  who  employs 
him,  keeps  down  the  charge  of  each.  There  is  also  a 
traditionary  sentiment  in  the  English  bar,  that  law 
should  not  be  regarded  as  a  mercenary  art. 

This  has  served  to  keep  the  minimum  retaining  fee 
very  low.  In  1738  a  duchess  sent  to  William  Murray, 
afterwards  Lord  Mansfield,  a  general  retaining  fee  of  a 
thousand  guineas.  He  returned  a  check  for  nine  hun- 
dred and  ninety-five,  with  a  note  saying  that  the  estab- 
lished ,fee  was  neither  more  nor  less  than  five  guineas.1 
An  English  barrister  stated  in  a  public  address,  in  1910, 
that  there  were  not  fifty  men  of  his  profession  in  the 
whole  kingdom  who  earned  a  steady  net  income  of 
£1,000. 

Sir  Edward  Coke  in  one  year  took  in  £7,000. 
John  Scott,  afterwards  Lord  Eldon,  earned  the  same 
amount  in  1787.2 

Lord  Erskine,  perhaps  the  most  famous  of  English 
advocates,  never  made  more  than  £10,000  a  year. 
Charles  Abbott,  afterwards  Lord  Tenterden,  during 
1807,  took  in  £8,000.  Probably  these  sums,  if  they 
are  to  be  understood  as  net,  and  represent  a  regular 
average  of  annual  professional  receipts,  had  not  then 
been  exceeded  in  England. 

Judah  P.  Benjamin,  who  became  a  member  of  the 
English  bar,  after  the  collapse  of  the  Southern  Con- 
federacy, had  a  gross  income,  in  1880,  of  nearly  £16,000 

Jeaffreson,  A  Book  about  Lawyers,  London,  1867,  p.  191, 
.,  p.  117, 


48         THE    YOUNG    MAN    AND    THE    LAW 

and,  during  the  sixteen  years  of  active  practice  in 
London  had  gross  receipts  aggregating  £144,000. 

Barristers  in  England,  however,  pay  their  clerks  by 
a  commission  on  their  fees.  As  they  are  the  go-betweens 
who  bring  briefs  from  attorneys,  this  percentage  may 
amount  to  a  large  sum,  to  be  charged  against  income 
account.  That  coming  to  Mr.  Benjamin's  chief  clerk 
in  one  year  was  fl^OO.1 

No  lawyer  in  England  of  his  time,  probably,  received 
larger  fees  than  Mr.  Benjamin  collected  in  his  best 
year,  and  it  is  doubtful  if  a  greater  sum  has  been  received 
by  any  since.2 

Both  there  and  here  very  large  fees  are  occasionally 
received  for  services  in  suits  or  in  corporate  promotions 
and  reorganizations,  which  make  a  red  letter  year  in  the 
lawyer's  life.  It  is  said  that  $500,000  was  thus  paid, 
not  many  years  ago,  to  a  Chicago  lawyer.  Payments 
of  this  character  are  often,  in  fact,  made  in  corporate 
securities  of  uncertain  value. 

In  1875,  Sergeant  Ballantine  received  one  fee  of  ten 
thousand  guineas.3  Probably  the  largest  fee  ever  be- 
fore received  in  England  for  the  trial  of  a  single  cause, 
was  that  of  Thomas  Wilde  (afterwards  Lord  Chancellor 
Truro),  who  had  nine  thousand  guineas  for  going 
"  special,"  i.  e.  out  of  his  circuit,  in  a  suit  involving  very 
large  property  interests.4 

1  Butler,  Judah  P.  Benjamin,  Philadelphia,  1906,  p.  420. 

2  See  Bryce,  American  Commonwealth,  Vol.  II,  1st  ed.,  p.  490. 

3  Crispe,  Reminiscences  of  a  King's  Counsel,  London,  1909,  p. 
130. 

4  Sheil,  Sketches  of  the  Irish  Bar,  New  York,  1854,  Vol.  I,  p.  19. 


ATTRACTIONS    OF    THE    PROFESSION        49 

Large  claims  are,  in  most  of  the  United  States,  often 
put  in  suit  by  lawyers  on  an  agreement  by  which,  in 
case  of  success,  they  are  to  receive  a  fixed  and  consider- 
able percentage  of  the  proceeds.  Where  this  is  unac- 
companied by  a  promise  to  pay  the  costs  of  the  pro- 
ceeding, it  is  generally  considered  as  not  objectionable. 
The  Code  of  Legal  Ethics  of  the  American  Bar  Asso- 
ciation sanctions  such  arrangements,  but  with  the 
proviso  that  they  should  be  in  each  case  under  the 
supervision  of  the  court.1 

This  practice  is  most  common  in  respect  to  claims 
against  the  government,  actions  for  injuries  received 
from  accidents,  suits  to  settle  disputes  as  to  land  titles, 
proceedings  for  taking  property  for  public  use,  and 
contested  wills.  If  it  did  not  exist,  the  rights  of  the 
poor  man  would  often  be  seriously  jeopardized. 
Alexander  Hamilton  made  an  agreement  for  additional 
fees  in  case  of  success,  at  a  time  when  his  practice  was 
at  its  height.2 

An  American  lawyer  has  a  chance  of  losing  money 
which  does  not  exist  as  to  the  English  barrister.  He 
is  liable  in  damages  to  his  clients  for  neglect  of  duty. 
The  relation  to  him  is  not  regarded  as  purely  an 
honorary  one.  As  in  the  United  States  the  lawyer  may 
sue  for  fees,  it  is  fair  that  the  client  should  be  allowed 
to  sue  him,  if  he  has  not  taken  proper  care  of  the  busi- 
ness that  he  was  employed  to  do.3 

1  Reports  of  the  American  Bar  Association,  Vol.  XXXIV,  p. 
1163. 

2  A.  M.  Hamilton,  Life  of  Alexander  Hamilton,  New  York,  1910, 
Vol.  II,  p.  190. 

a  Bryce,  American  Commonwealth,  Vol.  II,  1st  ed.,  pp.  483,  485. 


50    THE  YOUNG  MAN  AND  THE  LAW 

It  is  another  incident  of  the  uncommercial  character 
of  an  English  barrister's  employment  that  he  cannot 
form  a  legal  partnership.  This  denies  him  a  means  of 
working  into  practice  which  often  opens  the  door  to  an 
American  lawyer's  early  success. 

An  English  barrister  has  declared  that  the  legal  pro- 
fession is  the  best  of  all  to  a  man  in  good  circumstances, 
with  the  proper  qualifications.  "  As  a  profession,"  he 
writes,  "  the  Bar,  to  my  mind,  is  the  most  delightful  of 
all  avocations.  Given  a  man  who  knows  his  law,  is  a 
fair  logician,  a  fluent  speaker,  who  can  hold  his  own  in 
argument,  who  has  a  knowledge  of  human  nature,  who  can 
weigh  the  metal  of  juries  and  plumb  the  depths  of  wit- 
nesses, who  possesses  good-humor,  intelligence  and  tact, 
who  has  some  grace  of  style,  a  spice  of  wit,  and  who  can 
wreathe  the  garlands  of  rhetoric  —  I  can  imagine  no  man 
occupying  a  more  enviable  position.  He  has  fortune, 
promotion,  and  possibly  rank  before  him.  The  choicest 
prizes  the  Crown  offers  may  be  won ;  he  may  even  have 
to  keep  the  King's  conscience.  If  he  is  ambitious  he 
finds  the  widest  fields  to  delve.  If  he  is  popular  — 
Society  welcomes  him.  Playwrights  and  novelists 
idealize  him.  The  Senate  is  open  to  him,  and  if  his  dip 
into  the  political  lucky-bag  is  successful  he  becomes 
that  for  which  his  training  has  well  fitted  him  —  a  maker 
of  laws.  .  .  . 

"  But,"  he  proceeds,  "  I  strongly  advise  a  man  who  is 
in  needy  circumstances  not  to  join  the  Bar;  if  he  does 
he  is  inviting  a  life  of  grave  anxiety."  * 

i  Crispe,  Remiwitcences  of  a  K.  C.,  pp.  198,  200, 


ATTRACTIONS    OF    THE    PROFESSION        51 

The  American  lawyer  without  independent  means  of 
support  is  in  a  somewhat  less  embarrassing  situation. 
He  is  not  obliged  by  social  custom  to  live  at  as  expensive 
a  rate.  He  can  make  up  for  the  want  of  professional 
business,  or  supplement  what  he  may  have,  by  doing 
something  else,  such  as  tutoring,  or  soliciting  insurance, 
or  working  on  a  newspaper.  He  does  not  fall  as  far, 
if  he  finds  himself  obliged  to  abandon  the  profession  alto- 
gether and  follow  some  humbler  employment. 

The  want  of  money,  however,  is  a  stimulant  to  most 
men  to  work  harder  for  success,  than  they  otherwise 
might.  Clients,  moreover,  are  less  likely  to  come  to  a 
rich  man  or  a  rich  man's  son  than  to  one  who  is  known 
to  need  business,  who  has  every  motive  to  do  his  best, 
and  who  would  naturally  be  inclined  to  make  more 
moderate  charges.  Charles  Francis  Adams  (second  of 
the  name)  writes  in  his  autobiography  that  after  enter- 
ing the  bar  he  sat  years  in  an  office  in  a  building  in 
Boston,  owned  by  his  father,  without  a  call  from  a 
single  bona  fide  client.  There  was  money  in  his  family ; 
and  everybody  was  aware  of  it.  Hence  they  passed 
him  by  for  poorer  men.  His  brother  Henry  came  under 
the  same  shadow,  for  the  same  cause.1 

An  English  judge  has  said  that  most  barristers  who 
achieved  success,  achieved  it  because  they  began  without 
a  shilling. 

Curran,  the  great  Irish  advocate,  received  no  fees  of 
importance  until  he  had  been  quite  a  while  at  the  bar. 

i  The  Education  of  Henry  Adams,  Boston,  1918,  pp.  240,  242. 


52         THE    YOUNG    MAN    AND    THE    LAW 

The  first  came  at  a  moment  when  it  was  indeed  a  God- 
send.    He  tells  the  story  thus : 

"  I  then  lived  upon  Hay  Hill;  my  wife  and  children  were 
the  chief  furniture  of  my  apartments ;  and  as  to  my  rent,  it 
stood  pretty  much  the  same  chance  of  liquidation  with  the 
national  debt.  Mrs.  Curran,  however,  was  a  barrister's 
lady,  and  what  she  wanted  in  wealth  she  was  well  deter- 
mined should  be  supplied  by  dignity.  The  landlady,  on 
the  other  hand,  had  no  idea  of  any  gradation  except  that 
of  pounds,  shillings,  and  pence.  I  walked  out  one  morning 
to  avoid  the  perpetual  altercations  on  the  subject,  with 
my  mind,  you  may  imagine,  in  no  very  enviable  tempera- 
ment. I  fell  into  the  gloom  to  which,  from  my  infancy,  I 
had  been  occasionally  subject.  I  had  a  family  for  whom 
I  had  no  dinner,  and  a  landlady  for  whom  I  had  no  rent.  I 
had  gone  abroad  in  despondence  —  I  returned  home  almost 
in  desperation.  When  I  opened  the  door  of  my  study, 
where  Lavater  alone  could  have  found  a  library,  the  first 
object  which  presented  itself  was  an  immense  folio  of  a 
brief,  twenty  golden  guineas  wrapped  up  beside  it,  and 
the  name  of  Old  Bob  Lyons  marked  upon  the  back  of  it. 
I  paid  my  landlady  —  bought  a  good  dinner  —  gave  Bob 
Lyons  a  share  of  it  —  and  that  dinner  was  the  date  of  my 
prosperity."  1 

Many  an  American  lawyer  has  been  harassed  by 
similar  anxieties,  and  not  all  have  escaped  from  them 
so  well.  To  all,  business  that  is  substantial  is  apt  to 
come  slowly.  For  the  time  thus  left  on  a  young  lawyer's 
hands,  however,  there  is  opportunity  for  good  use.  He 
ought  to  employ  it  in  legal  study,  and  in  watching  pro- 
ceedings in  court.  He  needs  to  pay  attention  to  these 

i  Phillips,  Curran  and  His  Contemporaries,  New  York,  1851, 
p.  SO. 


ATTRACTIONS    OF    THE    PROFESSION        53 

things  at  just  that  period  of  his  life  in  order  to  lay  the 
foundations  for  a  successful  practice  that  may  be  later 
within  his  reach.  It  is  almost  a  misfortune  to  a  young 
lawyer  to  have  much  business  during  his  first  years  at 
the  bar.  If  quick  success  comes  to  him,  it  is  apt  to 
give  way  after  a  few  years  to  permanent  failure. 

It  is,  also,  always  true  that  an  American  lawyer's 
business  is  (and  particularly  at  the  outset)  conducted 
on  the  credit  system.  Work  that  he  does  to-day  is 
seldom  paid  for  to-day,  or  to-morrow.  It  may  be  years 
before  the  account  is  squared.  Many  never  are. 
Every  lawyer  knows  from  experience  what  "  bad  debts  " 
are. 

On  the  other  hand,  a  lawyer's  want  of  success  does  not 
involve  others  in  his  embarrassments  as  do  failures  in 
other  occupations.  What  was  known  forty  years  ago 
as  the  "  Boston  mercantile  maxim  "  declared  that  sooner 
or  later,  ninety-seven  merchants  in  every  hundred  be- 
come insolvent.  This  was  probably  an  over-estimate. 
Certainly  it  is  such  now,  in  view  of  the  reduction  during 
the  life  of  the  last  generation  in  the  number  of  distinct 
mercantile  concerns,  incident  to  the  growth  of  large  cor- 
porations. But  no  such  result  was  ever  predicted  as  to 
the  lawyers  of  the  country.  Most  of  them  succeed  in 
making  a  comfortable  living.  Nor,  if  they  fail  to 
achieve  this,  does  their  ill-fortune  often  affect  any  large 
number  of  creditors. 

Sydney  Smith  once  said  that  the  reason  why  so  many 
men  took  orders  in  the  Church  of  England,  when  they 
could  hardly  be  certain  of  getting  a  curacy  of  forty 


54         THE    YOUNG    MAN    AND    THE    LAW 

pounds  a  year,  was  that  they  might  become  deans  and 
bishops.  So  the  law,  both  in  England  and  the  United 
States,  attracts  many  who  hope  for  high  place  and 
large  incomes,  but  to  whom  they  never  come. 

The  American  bar  is  no  doubt  too  crowded  for  its 
own  best  good.  Probably  it  always  has  been.  By  the 
Census  of  1910  it  numbered  over  120,000.  In  1880 
there  were  less  than  65,000.  The  increase,  however, 
was  fairly  proportioned  to  the  addition  to  the  popula- 
tion of  the  country  during  the  period.  Since  1910,  the 
number  of  law  students  has  fallen  off  relatively  to  the 
growth  of  population.  This  is  mainly  due  to  the  gen- 
eral advance  in  all  the  States  of  the  requirements  for 
admission  to  the  bar,  on  account  of  the  efforts  of  the 
American  Bar  Association.  It  will,  of  course,  tend  to 
increase  the  average  earnings  of  the  American  lawyer. 
But  the  attractions  of  the  bar  will  probably  always  keep 
it,  here,  too  full.  The  nature  of  American  government 
makes  it  particularly  attractive.  The  genius  of  the 
people  is  bent  towards  reliance  on  and  respect  for  law, 
except  in  case  of  recent  immigrants  from  countries 
where  the  powers  of  society  have  been  used  for  oppres- 
sion. As  long  ago  as  1775,  Burke  remarked  upon  this 
as  a  dominant  American  characteristic.  Our  spirit  of 
liberty,  he  said  in  the  House  of  Commons,  was  fed  by 
our  subjects  of  education.  Law  had  a  large  place. 
The  lawyers  were  at  the  front. 

"  The  profession  itself  is  numerous  and  powerful ;  and 
in  most  provinces  it  takes  the  lead.  The  greater  number 
of  the  deputies  sent  to  the  congress  were  lawyers.  But  all 


ATTRACTIONS    OF    THE    PROFESSION        55 

who  read,  and  most  do  read,  endeavor  to  obtain  some 
smattering  in  that  science.  I  have  been  told  by  an  eminent 
bookseller,  that  in  no  branch  of  his  business,  after  tracts  of 
popular  devotion,  were  so  many  books  as  those  on  the 
law  exported  to  the  plantations.  The  colonists  have  now 
fallen  into  the  way  of  printing  them  for  their  own  use.  I 
hear  that  they  have  sold  nearly  as  many  of  Blackstone's 
Commentaries  in  America  as  in  England.  General  Gage 
marks  out  this  disposition  very  particularly  in  a  letter  on 
your  table.  He  states  that  all  the  people  in  his  govern- 
ment are  lawyers,  or  smatterers  in  law;  and  that  in  Boston 
they  have  been  enabled,  by  successful  chicane,  wholly  to 
evade  many  parts  of  one  of  your  capital  penal  constitu- 
tions." 1 

While  this  trend  of  thought  still  maintains  a  large 
influence  with  the  more  intelligent  part  of  the  community, 
new  inventions  and  scientific  discoveries,  bringing  new 
industries,  and  foreign  immigration  and  trade,  bringing 
new  ideas,  have  presented  competing  subjects  of  interest 
and  inquiry.  They  feed  the  lawyer's  business,  but  have 
reduced  his  personal  importance.  The  modern  tend- 
encies towards  combinations  of  capital  and  concentra- 
tion of  efficiency  have  also  had  their  effect  in  keeping 
professional  fees  in  the  country  at  large  at  a  moderate 
level. 

The  incomes  of  the  leaders  of  the  bar  among  country 
lawyers  will  naturally  be  far  below  those  of  the  leaders 
of  the  bar  in  great  cities.  At  a  time,  for  instance, 
when  some  Boston  lawyers  were  making  twenty  or  thirty 
thousand  dollars  a  year,  few  of  the  foremost  men  at 

i  Works  of  Edmund  Burke,  Bohn's  ed.,  Vol.  I,  p.  467. 


56    THE  YOUNG  MAN  AND  THE  LAW 

the  bar  in  the  small  cities  of  Massachusetts  were  earn- 
ing more  than  a  tenth  of  those  amounts.1  The  office 
expenses,  however,  of  a  city  lawyer  are  greater  in  pro- 
portion to  his  gross  income  than  are  those  of  a  country 
lawyer.  Rents  are  far  higher,  and  the  whole  equip- 
ment on  a  more  expensive  scale.  One  or  two  stenog- 
raphers and  office  boys  may  be  thought  necessary,  when 
the  same  business  in  a  country  town  could  readily  be 
done  with  the  aid  of  a  typewriter,  operated  by  the 
lawyer  himself.  Many  reports  of  large  professional  in- 
comes give  a  false  impression,  because  they  are  under- 
stood to  refer  to  net  earnings,  when  they  really  refer  to 
gross  earnings. 

Employers'  Liability  Acts  have  withdrawn  no  incon- 
siderable part  of  the  practice  of  most  American  trial 
lawyers. 

In  many  cities  Legal  Aid  societies  supply  professional 
counsel  in  small  matters  free,  and  serve  to  reduce  the 
number  of  paying  clients.  This,  however,  does  not 
justify  the  organization  of  any  society  or  corporation 
to  do  legal  business  for  pay.  Such  an  association  can- 
not be  a  lawyer,  nor  can  it  act  as  one  indirectly  by 
employing  a  lawyer  to  give  professional  advice  to  third 
parties  for  a  compensation  to  be  paid  to  it  or  to  him 
for  it.2 

A  corporation  may,  however,  be  formed,  to  insure 
others  against  loss  from  the  enforcement  of  claims  of  a 

i  Torrey,  A  Lawyer's  Recollections,  Boston,  1910,  p.  82. 
2/ra  re  Co-operative  Law  Company,  198  N.  Y.  Reports,  p.  479; 
92  Northeastern  Reporter,  p.  15. 


ATTRACTIONS    OF    THE    PROFESSION        57 

certain  kind,  and  do  this  by  assuming  the  charge  of 
defending  against  any  suits  brought  to  enforce  them. 
Here  the  defense  is,  of  course,  to  be  made  by  lawyers, 
acting  under  all  the  professional  responsibilities  attach- 
ing to  them,  as  such.  The  lawyer  may  be  retained  by 
the  corporation  specially  for  a  single  case  or  regularly 
by  the  year  for  all  cases  in  which  it  may  be  concerned. 
His  nominal  client  in  each  will  be  the  party  sued,  but  the 
substantial  defendant  will  be  the  corporation.  Many 
lawyers  derive  a  large  part  of  their  income,  and  some 
all  of  it,  from  employment  of  this  character.  In  this 
way  the  defense  of  accident  cases  has  very  largely 
passed  into  the  hands  of  corporations,  organized  to 
insure  those  who  may  be  responsible  for  paying  the 
judgment.  An  employer,  thus  insured,  does  not  per- 
sonally retain  a  lawyer.  The  company  provides  one, 
at  its  own  expense,  and  probably  one  especially  familiar 
with  the  work  of  handling  claims  of  that  description. 

Railroad  corporations  commonly  employ  claim  agents 
to  investigate  the  causes  of  accidents,  immediately  after 
they  occur,  and  endeavor  to  secure  favorable  terms  of 
settlement. 

It  was  estimated  by  a  competent  observer,  in  1914, 
that  the  defense  of  four-fifths  of  all  the  negligence 
cases  arising  in  or  about  the  larger  cities,  has  come  into 
the  hands  of  a  few  accident  and  employers'  liability 
insurance  companies.1 

Until  about  1870,  lawyers  in  general  practice  were 

i  Strong,  Landmarks  of  a  Lawyer's  Life  Time,  New  York,  1914, 
p.  353. 


58         THE    YOUNG    MAN    AND    THE    LAW 

accustomed  to  examine  the  land  records  and  certify  to 
title,  and  a  substantial  part  of  their  income  came  from 
this  source.  Since  that  time,  incorporated  title  and 
title  insurance  companies  have  come,  in  the  larger 
cities,  to  do  most  of  this  work,  and  the  amount  of  it 
has  been  also  lessened  by  legislative  changes. 

There  are  two  modes  of  recording  the  state  of  land 
titles.  One  is  to  record  at  length  the  documents  on 
which  they  rest.  The  other  is  to  record  simply  the  legal 
effects  of  such  documents.  The  former  was  originally 
the  universal  American  method.  The  latter  (the 
Torrens  plan)  has  now,  in  some  States,  partly  sup- 
planted it,  and  in  so  doing  has  transferred  there  to 
public  officials  a  business  previously  belonging  to 
lawyers.  The  lawyer  who  certified  to  the  goodness  of  a 
title  formerly  guaranteed  to  his  employer  only  that  he 
had  used  reasonable  care  to  ascertain  all  the  facts  ap- 
pearing on  record,  and  proper  professional  skill  in 
applying  the  law  to  them.  The  title  guarantee  com- 
pany pledges  itself  to  indemnify  those  who  take  a  title 
which  it  approves,  against  any  consequent  loss,  or  per- 
haps against  any  within  certain  expressed  limitations. 
The  corporation  hires  title  examiners,  who  are  usually 
lawyers,  but  each  receives  only  a  meager  salary,  the  real 
profits  going  to  their  employer. 

In  the  thinly  settled  parts  of  the  country  the  lawyer 
still  retains  most  of  this  kind  of  business,  but  even  there, 
on  a  transfer  of  a  particularly  valuable  piece  of  real 
estate,  resort  is  often  had  to  a  title  company  in  some 
neighboring  city. 


ATTRACTIONS    OF    THE    PROFESSION       59 

The  effect  of  one  modern  invention  has  been  to 
increase  largely  every  lawyer's  earning  capacity.  The 
telephone  practically  doubles  his  working  time.  He  can 
now  safely  make  engagements  on  the  same  day  in  dis- 
tant places  and  keep  himself  informed  of  the  probability 
of  reaching  a  case  for  trial  without  going  to  the  court 
house  until  told,  from  the  clerk's  office,  that  it  is  neces- 
sary. 

Business  is  secured  in  many  callings  by  advertising 
in  newspapers  and  magazines.  Special  qualifications 
for  doing  it  well  may  be  set  out  at  length.  This,  like 
any  other  form  of  soliciting  employment,  is  denied  to 
lawyers.1  Each  of  them  must  win  a  place  on  his  merits, 
as  other  people  view  them,  not  as  he  may  describe  them, 
himself.  This  may  seem  a  hard  rule  to  lay  down  for  a 
man  entering  the  bar,  and  whose  legal  ability  has  there- 
fore never  been  tested.  He  must  wait  for  his  oppor- 
tunity, and  make  the  most  of  it  when  it  comes.  To  a 
lawyer  who  has  once  acquired  a  fair  practice,  his  reputa- 
tion is  his  standing  advertisement.  In  the  United 
States  and  Canada  it  is  generally  thought  not  improper 
for  a  lawyer  to  advertise  that  he  pursues  a  particular 
line  of  business,  such  as  suits  on  patents,  or  that  his 
office  is  at  a  place  named.  The  best  lawyers,  however, 
seldom  do  even  this.  They  do  not  need  the  business 
which  it  would  bring.  For  a  lawyer  to  advertise  implies 
that  he  does  need  it.2 

1  Code   of  Legal  Ethics.    American  Bar  Association  Reports, 
Vol.  XXXIV,  p.  1167. 

2  See  Carter,  The  Ethics  of  the  Legal  Profession,  Chicago,  1915, 
p.  59. 


60    THE  YOUNG  MAN  AND  THE  LAW 

5.  The  Spirit  of  Brotherhood  m  the  Bar 

The  bar  always  a  public  fraternity.  No  different  schools,  in 
law.  Associations  within  the  bar.  Use  of  the  term  "  Brother " 
in  referring  to  a  brother  lawyer. 

One  of  the  dearest  relationships  in  life  is  that  of 
brethren.  That  of  members  of  a  great  fraternity 
approaches  it  in  force  and  meaning.  Whoever  enters 
the  bar  becomes  part  of  a  recognized  brotherhood.  It 
is  one  constituted  by  authority  of  the  State  for  public 
purposes  and  composed  of  men  selected  for  their 
proficiency  in  the  science  which  supports  the  State,  that 
is,  the  Law.  Most  fraternities  are  private  affairs, 
formed  to  serve  the  pleasures  or  the  interests  of  their 
members.  That  of  the  bar  is  held  together  by  a  public 
bond  and  for  the  public  good.  As  such  it  has  been 
given  a  monopoly  of  the  business  of  addressing  courts. 
It  is  an  undivided  monopoly.  There  are  different  sects 
in  theology ;  different  schools  in  medicine ;  absolute  unity 
in  law.  Those  who  practice  it  are  brothers,  standing 
on  equal  ground.  They  constitute  a  body  of  believers 
in  the  same  thing.  The  law  which  they  profess  is 
always  in  principle  one  and  the  same.  It  stands  for 
justice  and  it  generally  is  justice. 

The  bar  carries  to  all  its  members  the  obligation  of 
fraternity.  It  is  entitled  to  their  loyal  support,  each 
acting  for  the  benefit  of  all,  and  never  forgetting  what 
is  due  to  the  traditional  esprit  du  corps. 

Alexander  Hamilton  once  refused  a  retainer  in  an 
important  case,  because  it  was  offered  by  a  man  who  had 
made  unfair  criticisms  of  the  legal  profession,  in  a  letter 


ATTRACTIONS    OP    THE    PROFESSION        61 

to  a  third  person.  This  letter,  he  wrote,  "  contains  a 
general  and,  of  course,  an  unjustifiable  reflection  on  the 
profession  to  which  I  belong,  and  of  a  nature  to  put  it 
out  of  my  power  to  render  you  any  service  in  the  line 
of  that  profession."  J 

It  is  in  this  spirit  that  lawyers  should  be  jealous  of 
the  honor  of  the  brotherhood  to  which  they  belong. 
They  should,  and  in  some  measure  they  all  must  find 
in  it  an  inspiration  to  the  formation  of  their  ideals  of 
law  and  of  the  justice  on  which  law  rests,  and  for  secur- 
ing which  it  exists. 

They  find  in  the  bar,  also,  a  warning  that  they  must 
demean  themselves  worthily  in  all  that  relates  to  it, 
and  that  there  is  power  in  courts  to  see  that  this  is  done. 

They  find  in  it  a  friendly  tribunal  to  judge  their  own 
qualifications  for  the  profession.  A  lawyer  who  has 
won  the  good  opinion  of  the  bar  is  reasonably  certain  of 
success. 

In  the  lighter  incidents  of  daily  life,  the  bar  offers 
opportunities  which  often  lead  to  intimate  and  life-long 
friendships.  Particularly  is  this  true  in  country  dis- 
tricts where,  when  courts  are  in  session,  the  lawyers 
from  the  whole  country  are  thrown  closely  together. 
Membership  in  bar  associations,  local,  State,  and 
national,  serves  a  similar  purpose.  The  American  Bar 
Association,  which  numbers  about  ten  thousand,  coming 
from  every  State  and  Territory,  has  offered,  since  1878, 
a  common  meeting  place,  and  maintains  a  healthy  and 

i  A.  M.  Hamilton,  Life  of  Alexander  Hamilton,  Vol.  II,  p.  169. 


62         THE    YOUNG    MAN    AND    THE    LAW 

unifying  influence  over  all  the  local  and  State  associa- 
tions. 

It  was  for  centuries  the  practice  of  the  English 
judges  to  address  sergeants-at-law  as  "  Brother "  so 
and  so.  This  usage  was  extended  in  the  older  American 
colonies  to  include  all  barristers,  and  when  that  title  was 
dropped  in  the  United  States,1  all  counselors  at  law. 
Both  in  and  out  of  court  the  judges  frequently  address 
each  other  as  Brothers,  and  members  of  the  bar,  in  con- 
versing with  or  referring  to  each  other,  often  use  the 
same  appellation.  In  the  case  of  counsel  appearing 
before  the  Supreme  Court  of  the  United  States,  those 
who  come  from  States  where  this  practice  obtains,  are 
accustomed  to  follow  it  there. 

6.  The  Variety  of  Legal  Business 

The  different  classes  of  lawyers  in  the  United  States.  Court 
and  office  lawyers.  Lawyers  as  trustees.  Probate  and  bank- 
ruptcy practice.  Practice  before  public  boards  or  commissions, 
and  in  the  collection  of  claims  against  Governments.  New  stat- 
utes continually  raise  new  questions.  The  world-war  has  raised 
many.  International  Arbitration.  Trial  lawyers  not  necessarily 
the  highest  type  of  lawyers.  The  lawyer's  choice  of  his  class. 
His  change  of  choice. 

In  an  address  given  in  1916  to  the  Seniors  in  Yale 
College,  President  Hadley  said : 

"  Speaking  broadly,  men  may  be  divided  into  three  types 
or  temperaments :  the  scientific  type,  consisting  of  men 
whose  power  lies  in  observing  and  arranging  and  putting 
facts  in  order;  the  literary  type,  whose  interest  lies  in 

i  In  Massachusetts  the  title  of  barrister  was  retained  until 
1806.  Great  American  Lawyers,  Vol.  II,  p.  79. 


ATTRACTIONS    OF    THE    PROFESSION        63 

communicating  ideas  to  others,  and  in  thus  influencing  the 
opinions  and  actions  of  their  fellow  men,  and  the  practical 
type,  which  is  interested  neither  in  the  arrangement  of 
facts  nor  in  the  communication  of  ideas,  except  as  a  means 
of  achieving  concrete  results  in  the  way  of  business  or 
politics  or  some  form  of  human  endeavor.  From  the  first 
type  come  our  physicians,  our  engineers,  our  accountants, 
and  our  consulting  experts  of  every  kind.  From  the  second 
type  come  our  teachers,  our  preachers,  our  journalists,  and 
our  jury  lawyers;  from  the  third  our  merchants,  our  manu- 
facturers, our  railroad  men,  and  our  consulting  lawyers. 
The  mental  qualities  which  fit  a  man  for  success  in  these 
three  groups  are  quite  different;  but  those  that  fit  a  man 
for  success  in  the  different  callings  within  any  one  of 
these  groups  are  pretty  nearly  the  same."  x 

The  two  groups  of  lawyers  thus  described  are  by  no 
means  the  only  ones  to  be  noticed  in  the  legal  pro- 
fession. Another  group  is  that  of  the  court  lawyers 
who  seldom  or  never  try  a  case  before  a  jury;  another 
of  those  who  practice  mainly  in  the  courts  of  criminal 
jurisdiction.  A  large  one  is  of  clerks  in  large  offices 
who  work  for  other  lawyers,  and  receive  fixed  salaries. 
Another  is  of  specialists,  who  pursue  some  single  line  of 
practice,  such  as  patent  litigation  or  admiralty  proceed- 
ings. Another  is  composed  of  men  especially  familiar 
with  international  private  law;  another  of  those  who 
particularly  profess  public  international  law.  Another 
group  consists  of  teachers  of  law,  some  giving  all  and 
more  but  a  part  of  their  time  to  this. 

In  these  and  other  ways  the  American  lawyer  has  a 

i  Tale  Alumni  Weekly,  Vol.  XXV,  p.  699. 


64?    THE  YOUNG  MAN  AND  THE  LAW 

freedom  and  range  of  activity  quite  unknown  to  his 
English  brethren.  He  is  more  independent  and  self- 
contained.  Unlike  the  English  solicitor,  he  can  address 
the  court.  Unlike  the  English  barrister,  he  can  con- 
sult with  his  clients,  and  his  business  commonly  comes 
to  him  directly  from  their  hands.  In  England,  on  the 
other  hand,  the  barrister's  income  finds  its  sources  in  the 
good  opinion  or  the  favor  of  the  solicitors.1 

The  American  lawyer  thus  combines  the  functions  of 
the  English  barrister  and  solicitor,  the  advocate  and 
proctor  in  admiralty,  and  the  French  avocat  and  avoue. 
He  has  the  right  to  engage  in  the  preparation  of  cases 
and  also  in  their  argument.  He  can  draw  the  plead- 
ings, and  then  explain  the  issues  to  the  court.  He  can 
appear  in  the  courts  of  the  United  States,  as  well  as 
of  his  State.  He  can  attack  or  defend  a  patented 
invention,  or  a  literary  copyright,  as  well  as  sue  on  a 
promissory  note. 

But  practically  he  is  apt  to  confine  his  activities 
mainly  to  a  certain  line  of  practice.  He  may  be  chiefly 
employed  either  as  a  trial  lawyer,  or  as  an  office  lawyer. 
The  trial  lawyer  may  be  best  known  for  his  connection 
with  criminal  causes,  or  in  civil  causes ;  for  his  success 
before  the  jury,  or  before  a  judge.  The  office  lawyer 
may  seldom  or  never  enter  the  court  room.  His  time 
may  be  devoted  to  advising  this  or  that  action  on  the 
part  of  clients  in  a  case  where  they  are  uncertain  as  to 
their  legal  rights.  He  may  be  largely  a  draftsman  of 

i  See  Jenks,  Short  History  of  the  English  Law,  Boston,  1912, 
p.  203, 


ATTRACTIONS    OF    THE    PROFESSION       65 

contracts  or  conveyances  and  wills.  He  may  give  him- 
self wholly  to  questions  incident  to  the  management  of 
one  or  more  large  interests. 

A  lawyer  often  also  drifts  into  the  position  of  a 
trustee  of  an  estate,  or  of  an  adviser  as  to  the  conduct 
of  a  trust.  Most  of  those  to  whose  care  the  estates 
of  the  dead  are  committed  are  not  lawyers,  and  need 
frequent  counsel  from  a  lawyer.  The  division  of  law 
known  as  Equity  is  specially  conversant  with  trusts  of 
different  kinds.  Some  lawyers  give  their  attention  par- 
ticularly to  equitable  rules  of  practice;  and  partly  for 
that  reason  are  selected  themselves  as  executors,  admin- 
istrators, or  receivers,  or  trustees.  Those  for  whom 
they  may  thus  act  have  a  special  security  by  reason  of 
the  control  which  courts  of  equitable  jurisdiction  have 
over  lawyers,  in  summary  proceedings.  Because,  if  a 
lawyer  is  made  a  trustee,  it  is  probably  in  part  due  to 
his  professional  character,  the  court  may  deal  with 
such  a  one,  should  he  become  a  defaulter,  as  a  lawyer 
who  has  violated  his  official  obligations  to  the  State. 
They  can  enforce  restitution  by  summary  proceedings 
of  arrest,  or  require  it,  after  proper  censure,  on  pain 
of  disbarment. 

Practice  in  the  courts  of  probate  and  insolvency  en- 
gages the  attention  of  some  city  lawyers  almost 
exclusively.  A  lawyer,  as  above  stated,  is  often  named 
as  executor,  or  assignee  in  bankruptcy  or  insolvency, 
and  such  a  position  is  apt  to  involve  or  indirectly  lead 
to  considerable  remunerative  labor  of  a  professional 
character. 


66    THE  YOUNG  MAN  AND  THE  LAW 

The  courts  of  probate,  under  the  laws  of  mortality, 
make  a  turnover,  two  or  three  times  in  every  century,  of 
the  whole  capital  in  the  country,  held  in  private  owner- 
ship. They  also  share  with  courts  of  equity  a  large, 
standing,  and  continuous  jurisdiction  over  permanent 
testamentary  trusts  of  a  public  or  charitable  nature. 
Their  functions  in  settling  the  rights  of  the  State  to 
exact  inheritance  taxes  are  of  large  importance. 

Few  considerable  estates  are  settled  without  more 
than  one  occasion  arising  which  calls  for  legal  advice, 
and  may  result  in  important  litigation,  either  in  these 
courts  or,  on  appeal,  in  the  higher  courts  of  general 
jurisdiction.  To  give  but  a  single  instance,  the  Pro- 
bate Court  of  Cook  County,  which  includes  Chicago, 
annually  disposes  of  over  ten  thousand  claims  against 
estates,  about  a  tenth  of  which  are  contested.  It 
speaks  well  for  the  composition  of  the  court  that 
there  are  seldom  more  than  twenty  or  thirty  appeals 
taken.1 

The  great  extension  since  1866  in  the  exercise  by 
Congress  and  the  State  legislatures  of  powers  previously 
lying  dormant  has  created  almost  a  new  division  of 
practice:  —  that  before  public  boards  and  commissions 
or  commissioners.  They  deal  with  large  interests,  and 
lawyers  of  the  first  rank  often  appear  before  them. 
They  also  often  have  counsel  of  their  own. 

There  have  always  been,  in  our  larger  cities,  lawyers 
practicing  mainly  in  the  Courts  of  the  United  States. 
Another  group,  centering  at  Washington,  consists  of 
i  Michigan  Law  Review,  Vol.  XIII,  p.  670. 


ATTRACTIONS    OF    THE    PROFESSION        67 

men  who  spend  most  of  their  time  in  pressing  claims 
against  our  own  or  foreign  governments. 

The  excessive  mass  of  American  legislation  is  the 
mother  of  innumerable  questions  of  statutory  construc- 
tion. New  problems  daily  arise  from  it,  which  call  for 
new  studies  in  new  directions. 

The  litigation  in  new  fields  which  is  sure  to  follow  the 
return  of  peace  after  the  world  war  of  1914—1919  will 
be  enormous.  The  courts  will  be  kept  busy  in  dealing 
with  great  questions  of  constitutional  law.  Interna- 
tional law,  both  public  and  private,  will  present  grave 
problems  for  judicial  settlement.  So  will  the  rules  to 
govern  our  Courts  of  Admiralty.  The  United  States 
also  has  assumed  a  new  financial  character.  It  is,  at 
the  present  time,  the  monetary  center  of  the  world. 
Many  commercial  disputes  of  a  kind  that  formerly 
would  have  been  determined  by  foreign  courts  will  now 
be  brought  before  those  of  our  country,  both  State  and 
National. 

Arbitration,  commissions  of  inquiry,  quasi- judicial, 
and  judicial  proceedings  to  adjust  the  differences  of 
nations  will  become  more  common  than  before  the  war. 
The  methods  of  conducting  them  will  be  revised,  and  it 
will  be  for  the  lawyers  to  do  this. 

The  Permanent  Court  of  Arbitration,  organized 
under  the  Conventions  adopted  at  the  Hague  Peace 
Conferences  of  1899  and  1907,  opened  a  new  forum 
for  the  settlement  of  disputes  between  independent  gov- 
ernments. All  the  great  Powers  and  several  of  the 


68        THE    YOUNG    MAN    AND    THE    LAW 

lesser  ones  have  from  time  to  time  gone  before  it  for 
that  purpose.  They  have  been  represented  there  by 
lawyers ;  and  the  tribunal  which  heard  them  was  mainly 
composed  of  lawyers.  There  have  been,  also,  since  the 
close  of  the  eighteenth  century,  many  arbitration  pro- 
ceedings under  special  treaties.  There  will,  in  nat- 
ural course,  be  many  more.  A  League  of  Nations,  if 
effectively  organized,  will  have  agencies  of  a  character 
more  or  less  judicial,  either  instituted  by  itself,  or  taken 
over  by  adoption  from  those  created  by  the  Hague  Con- 
ventions, or  by  later  treaties,  or  international  cove- 
nants. 

The  great  American  lawyers  of  the  last  generation, 
such  'as  William  M.  Evarts,  Edward  J.  Phelps,  and 
Benjamin  Harrison,  have  appeared  and  won  new  dis- 
tinction before  such  tribunals.  The  set  of  the  tide  is 
towards  arbitration  or  judicial  action  rather  than  war, 
as  the  mode  of  settling  differences  between  nations. 
This,  in  connection  with  the  continual  spread  of  the 
English  language,  tends  directly  to  widen  the  field  of 
practice  of  the  American  bar,  and  make  the  world  their 
clients. 

An  American  lawyer  is  in  no  danger  of  getting  into  a 
rut.  He  is  always  dealing  with  novel  situations.  It 
has  been  said  that  the  difference  between  a  rut  and  a 
grave  is  that  one  is  a  little  deeper  than  the  other.  The 
doctor,  the  minister,  the  business  man,  if  he  always  keeps 
along  the  same  track,  unconscious  or  heedless  of  the 
constant  changes  in  the  environment  of  ideas  and  facts 


ATTRACTIONS    OF    THE    PROFESSION        69 

which  affect  his  relations  to  his  work,  will  find  himself 
gradually  losing  strength  and  heart.  The  lawyer  can 
hardly  follow  such  a  course,  if  he  would.  Social 
progress  soon  takes  the  shape  of  law,  and  he  must,  at 
his  peril,  follow  the  development  of  that.  Every  new 
statute  affects  many  interests  which  were,  and  many 
probably  which  were  not,  contemplated  by  its  framers. 
How  they  are  affected,  and  to  what  extent,  are  questions 
which  in  some  degree  it  is  the  duty  of  every  lawyer  to 
study,  and  will  be  the  duty  of  some  to  answer,  if  called 
on,  to  the  extent  of  their  knowledge  and  ability. 

It  would  be  by  no  means  just  to  say  that  in  the 
United  States  the  highest  rank  in  the  profession  be- 
longed to  the  trial  lawyer. 

Few  of  the  cases  that  might  be  brought  are  brought. 
Few  of  those  that  are  brought  are  tried.  Few  of  those 
tried  involve  any  matter  of  difficulty,  or  offer  occasion 
for  any  display  of  power  except  that  of  making  a  clear 
statement  of  the  material  facts,  and  their  relation  to 
each  other. 

A  large  part  of  every  lawyer's  business  is  to  advise 
against  bringing  suits,  or  how  to  act  so  as  to  avoid  a 
cause  of  litigation.  Here  he  uses  what  is  practically 
almost  an  absolute  power,  for  his  clients  come  to  him 
because  they  trust  in  his  judgment,  rather  than  their 
own. 

A  Wisconsin  lawyer  said  of  one  of  his  brethren  who 
had  passed  away,  that  he  was  at  his  best  "  in  his 
capacity  of  counsel,  in  his  office,  where  every  lawyer  is 
a  judge,  and  where  in  matters  not  litigated?  vastly 


70         THE    YOUNG    MAN    AND    THE    LAW 

exceeding  those  which  are,  he  decides  all  questions."  J 

It  was  a  main  principle  of  Schopenhauer's  philosophy 
that  all  pleasure  is  derived  from  the  use  and  conscious- 
ness of  power.  This  is  a  false  generalization,  but 
there  is  no  doubt  that  much  pleasure  is  attained  in  this 
way. 

Every  lawyer  is  in  a  position  of  power.  His  advice 
in  a  controversy  that  never  goes  to  court  will  probably 
be  controlling  and,  if  it  does  become  the  subject  of  a 
law-suit,  and  he  feels  his  power  over  judge  and  jury,  it 
will  be  a  great  source  of  personal  satisfaction. 

His  inclination,  however,  may  lead  him  to  a  field  where 
the  best  powers  he  has  find  no  opportunity  for  display. 
He  may  seek  to  be  a  trial  lawyer,  when  success  for  him 
lies  in  being  an  office  lawyer.  He  may  seek  a  line  of 
practice,  such  as  patent  litigation,  where  scientific 
knowledge  and  aptitude  are  important,  without  having 
either.  He  may  confine  himself  to  criminal  practice 
when  his  powers  could  better  help  him  on  in  civil  causes. 

It  is  one  of  the  attractions  of  the  legal  profession 
that  so  many  doors  to  success,  or  at  least  to  oppor- 
tunity for  success,  are  always  open.  If  a  lawyer  enters 
one  and  finds  nothing  for  him  there,  he  has  only  to  try 
the  next, 
i  Winslow,  The  Story  of  a  Great  Court,  Chicago,  1912,  p.  124,, 


CHAPTER  III 

OBJECTIONS    TO    CHOOSING    THE    LEGAL   PEOFESSION 

1.  The  Charge  That  it  Leads  to  Dishonesty  and  Defense 
of  GuUt 

Ancient  prejudice  against  attorneys.  Sir  Walter  Scott's  opin- 
ion. The  English  attorney's  work.  Colonial  prejudice  here  be- 
fore the  Revolution.  Advancement  since  in  standards  of  legal 
ethics.  Sir  Hiram  Maxim's  view.  Macaulay's  criticisms.  Lord 
Campbell's  statement.  Professional  pretenses.  Statements  as  to 
the  lawyer's  own  opinions.  How  he  is  to  present  his  case. 
Baron  BramwelPs  views.  Lord  Halsbury's.  Lord  Erskine's. 
Mr.  Justice  Ellsworth's.  Sir  Matthew  Hale's.  Professional  ad- 
vice as  to  future  conduct.  Lord  Brougham's  characterization  of 
a  lawyer's  duty.  Lord  Chief  Justice  Cockburn's.  The  defense  of 
the  guilty.  Dr.  Samuel  Johnson's  view.  Cicero's.  A  lawyer's 
aid  a  necessity  in  conducting  trials.  Swinney*s  case.  Plain  cases 
seldom  tried.  A  lawyer  naturally  takes  his  client's  view.  Any 
one  safe  in  choosing  any  reputable  profession. 

LAWYERS  have  never  been  favorites  of  popular 
literature. 

"  Why,"  says  Hamlet,  as  a  skull  is  dug  up  during  his 
talk  in  the  graveyard,  "  may  not  that  be  the  skull  of  a 
lawyer?  Where  be  his  quiddities  now,  his  quillets,  his 
cases,  his  tenures  and  his  tricks?  " 

Boileau-Despreaux,  (echoed  by  Pope),  attacks  the 
rapacity  of  both  lawyers  and  judges  in  his  story  of  the 
disputants  over  the  right  to  an  oyster: 

71 


72         THE    YOUNG    MAN    AND    THE    LAW 

"  There,  take   (says  Justice),  take  ye  each  a  shell: 
We  thrive  at  Westminster  on  fools  like  you. 
'Twas  a  fat  oyster, —  live  in  peace  —  Adieu." 

Mandeville  jeered  at  lawyers  who 

"  To  defend  a  wicked  cause, 
Examined  and  surveyed  the  laws, 
As  burglars  shops  and  houses  do, 
To  see  where  best  they  may  break  through." 

But  gibes  of  this  sort  do  not  express  the  solid  judg- 
ment of  the  community.  Rogues  may  intrude  into  any 
profession,  but  their  rascality  is  not  to  be  imputed  to 
the  rest.  A  tricky  or  dishonest  attorney  condemns 
himself,  and  sinks  to  the  very  bottom  of  bad  morals,  but 
this  ought  not  to  sully  the  good  name  of  the  whole  body 
to  which  he  unhappily  belonged. 

Lord  Bolingbroke  once  said  that  "  the  profession  of 
law,  in  its  nature  the  noblest  and  most  beneficial  to  man- 
kind, is  in  its  abuse  and  basement  the  most  sordid  and 
pernicious."  No  fair-minded  observer,  however,  will 
deny  either  that  most  lawyers  are  honest,  or  that  the 
dishonest  are  quickly  and  effectively  punished  by  the 
courts.  The  general  verdict  is  none  too  favorably  pro- 
nounced in  these  words,  by  Sir  Walter  Scott,  long  a 
close  observer,  by  the  requirements  of  an  official  posi- 
tion, of  proceedings  in  court : 

"  In  a  profession  where  unbounded  trust  is  necessarily 
reposed,  there  is  nothing  surprising  that  fools  should 
neglect  it  in  their  idleness  and  tricksters  abuse  it  in  their 
knavery.  But  it  is  the  more  to  the  honor  of  those,  (and  I 


OBJECTIONS    TO    THE    PROFESSION         73 

will  vouch  for  many),  who  unite  integrity  with  skill  and 
attention,  and  walk  honorably  upright  where  there  are  so 
many  pitfalls  and  stumbling  blocks  for  those  of  a  different 
character.  To  such  men  their  fellow  citizens  may  safely 
entrust  the  care  of  protecting  their  patrimonial  rights,  and 
their  country  the  more  sacred  charge  of  her  laws  and 
privileges."  x 

The  term  "  attorney  "  has  been  degraded  for  English 
speaking  peoples  by  the  ancient  division  of  legal  busi- 
ness in  England  between  the  attorney  and  the  barrister. 
Of  these  two,  only  the  barrister,  being  a  member  of 
the  bar,  comes  in  direct  contact  with  the  court,  on 
terms  of  social  equality.  The  attorney,  who  prepares 
the  cause  for  trial,  is  forced  to  leave  the  conduct  of  the 
trial  and  argument  in  the  hands  of  the  barrister.  A 
position  of  professional  inferiority  is  thus  created, 
which  the  attorneys  have  felt  keenly ;  and  in  the  case  of 
not  a  few  it  has  reacted  on  the  man's  professional  char- 
acter, and  he  has  stooped  to  trickery  and  fraud.  Such 
a  firm  as  the  "  Quirk,  Gammon  &  Snap  "  which  Warren 
has  painted  for  us  in  "  Ten  Thousand  a  Year,"  is  more 
possible  in  England  than  in  the  United  States,  where  all 
lawyers  stand  practically  on  the  same  footing.  It  is 
partly  for  these  reasons  that  the  very  name  "  attorney  " 
has  been  substantially  dropped  in  England  during  the 
last  forty  years  and  that  of  "  solicitor  "  substituted. 

There  was  a  strong  popular  prejudice  against  law- 
yers in  the  State  of  New  York  shortly  before  the 
Revolution.  It  was  proposed  in  the  legislature  to  cur- 

i  The  Antiquary,  Vol.  II,  p.  270.    Ticknor  &  Fields'  ed. 


74«    THE  YOUNG  MAN  AND  THE  LAW 

tail  the  jurisdiction  of  the  Supreme  Court.  One  of  the 
bar  wrote  thus  to  a  brother  lawyer,  in  regard  to  it : 

"  I  look  upon  this  bill  as  an  effect  of  an  almost  uni- 
versal prejudice  against  the  law  and  its  practices.  You 
cannot  conceive  the  violence  of  people's  prejudices; 
whether  they  are  groundless,  or  whether  they  are  really 
chargeable  to  the  body  of  the  law  in  general,  the  respect- 
able gentlemen  on  each  side  of  the  question  hinder  me 
from  determining  entirely. 

"  However  this  may  be,  the  end  aimed  at  is  the  total 
destruction  of  the  profession, —  a  profession  however 
without  which  society  would  not  easily  subsist."  1 

Similar  legislation  was  urged  in  other  of  the  Ameri- 
can colonies.  The  next  century  saw  less  of  this. 
There  was  less  cause  for  it.  The  standard  of  ethics  at 
the  American  bar  was  raised  after  the  middle  of  the 
nineteenth  century.  To  take  an  instance,  a  Massachu- 
setts lawyer,  soon  after  a  stamp  tax  on  contracts  was 
laid  by  the  United  States  to  help  meet  the  expenses  of 
the  Civil  War,  had  to  defend  a  suit  before  a  justice  of 
the  peace  on  an  unstamped  contract.  The  Act  of  Con- 
gress provided  that  such  a  paper  could  not  be  "  used  in 
evidence  in  any  court."  The  Massachusetts  Supreme 
Judicial  Court  had  recently  held  that  these  words  were 
only  intended  to  apply  to  United  States  Courts.  The 
lawyer  knew  this,  but  did  not  inform  the  magistrate, 
claiming  with  success  that  the  contract  on  which  the 
plaintiff  relied  was  inadmissible  in  evidence  by  the  plain 

i  Life  of  Peter  van  Schaack,  New  York,  1842,  p.  8. 


OBJECTIONS    TO    THE    PROFESSION          75 

terms  of  the  statute.  In  1910,  when  an  old  man,  the 
lawyer  who  had  thus  imposed  upon  an  officer  of  the 
State,  published  a  volume  of  professional  reminiscences, 
in  which  he  justly  said  that  this  would  then  be  called 
"  sharp  practice,"  although,  forty  years  before,  a  law 
suit  was  quite  commonly  regarded  as  a  mere  contest  of 
wits.1 

There  is,  however,  still,  in  many  people,  a  deeply 
rooted  opinion  that  the  bar,  both  in  England  and  the 
United  States,  is  rapacious,  tricky  and  deceitful.  Sir 
Hiram  S.  Maxim,  who  has  belonged  to  each  country,  and 
done  a  large  business  in  each,  has  recently  expressed  it 
thus: 

"  The  laws,  having  been  made  by  the  people,  are  as  a 
rule  wise  and  just;  it  is  only  the  lawyers  that  are  all 
wrong.  There  are  vastly  more  lawyers  than  we  have  any 
use  for  —  too  many  striving  to  make  a  living  out  of  other 
people's  troubles  —  and  it  is  therefore  to  their  advantage, 
when  they  get  a  case,  to  make  as  much  out  of  it  as  pos- 
sible, which  means  that  instead  of  getting  their  client  out 
of  trouble  and  saving  his  money,  they  greatly  prolong  the 
agony  and  relieve  him  of  as  much  money  as  possible."  2 

Is  there  now  any  basis  for  the  position  that  lawyers 
are  dishonest  in  putting  forward  claims  which  they  know 
are  without  merit,  while  pretending  that  they  are  legal 
and  just?  Macaulay  has  voiced  this  charge  with  his 
usual  vigor  of  statement: 

"  We  will  not,"  he  says,  in  commenting  on  the  proposi- 

i  Torrey,  A  Lawyer's  Recollection*,  p.  122. 
?  Maxim,  My  Life,  New  York,  1915,  p.  309. 


76    THE  YOUNG  MAN  AND  THE  LAW 

tion  that  no  advocate  can  justifiably  use  any  discretion  as 
to  the  party  for  whom  he  appears,  "  at  present  inquire 
whether  the  doctrine  which  is  held  on  this  subject  by  Eng- 
lish lawyers  be  or  be  not  agreeable  to  reason  and  morality; 
whether  it  be  right  that  a  man  should,  with  a  wig  on  his 
head  and  a  band  round  his  neck,  do  for  a  guinea  what,  with- 
out these  appendages,  he  would  think  it  wicked  and  infa- 
mous to  do  for  an  empire;  whether  it  be  right  that,  not 
merely  believing,  but  knowing  a  statement  to  be  true,  he 
should  do  all  that  can  be  done  by  sophistry,  by  rhetoric,  by 
solemn  asseveration,  by  indignant  exclamation,  by  gesture, 
by  play  of  features,  by  terrifying  one  honest  witness,  by 
perplexing  another,  to  cause  a  jury  to  think  that  statement 
false."  * 

There  can  be  no  doubt  that  a  large  part  of  the  public 
believes  the  censure  which  is  expressed  in  such  utterances 
deserved.  Better  ground  has  existed  for  attributing 
such  arts  and  pretenses  to  members  of  the  English  bar 
than  to  members  of  the  American  bar.  Let  Lord 
Campbell  be  called  as  a  witness  to  this.  A  passage  may 
be  cited  from  his  life  of  Lord  Tenterden,  in  which,  after 
highly  praising  the  members  of  the  Court  of  Common 
Pleas  when  Abbott  presided  over  it,  he  goes  on  thus : 

"  Before  such  men  there  was  no  pretense  for  being 
lengthy  or  importunate.  Every  point  made  by  counsel  was 
understood  in  a  moment,  the  application  of  every  authority 
was  discovered  at  a  glance,  the  counsel  saw  when  he  might 
sit  down,  his  case  being  safe,  and  when  he  might  sit  down, 
all  chance  of  success  for  his  client  being  at  an  end.  I  have 
practiced  at  the  bar  when  no  case  was  secure,  no  case  was 
desperate,  and  when,  good  points  being  overruled,  for  the 

i  Macaulay,  Essays,  Philadelphia  ed,?  Yol,  II,  p.  325. 


OBJECTIONS    TO    THE    PROFESSION         77 

sake  of  justice  it  was  necessary  that  bad  points  should  be 
taken;  but  during  that  golden  age  law  and  reason  prevailed 
—  the  result  was  confidently  anticipated  by  the  knowing 
before  the  argument  began  —  and  the  judgment  was  ap- 
proved by  all  who  heard  it  pronounced  —  including  the 
vanquished  party.  Before  such  a  tribunal  the  advocate 
becomes  dearer  to  himself  by  preserving  his  own  esteem, 
and  feels  himself  to  be  a  minister  of  justice,  instead  of  a 
declaimer,  a  trickster,  or  a  bully."  x 

There  is  a  reflex  meaning  in  the  concluding  words, 
which  certainly  may  be  taken  as  some  indication  that 
Lord  Campbell  and  Lord  Macaulay  were  of  much  the 
same  opinion  as  to  the  scope  of  professional  duty. 

The  true  lawyer  never  pretends,  in  arguing  a  cause, 
to  feel  a  passion  of  emotion  to  which  he  is  really  a 
stranger.  That  is,  in  the  words  of  Chief  Justice 
Bleckley  of  Georgia,  in  his  address  on  "  Truth  at  the 
Bar,"  a  lie  of  the  soul.  Nor  does  he  assert  that  to  be 
true  which  he  knows  to  be  false,  or  that  to  be  law 
which  he  believes  to  be  not  law.  He  does  not  even  say 
to  the  jury,  where  there  is  a  conflict  of  evidence,  that  he 
believes  a  certain  state  of  facts  to  exist,  thus  offering 
his  belief  as  a  ground  for  theirs.  One  of  the  leading 
men  now  on  the  American  bench  has  declared  that 
"  when  counsel  so  far  forget  their  duty  as  to  express 
their  belief  as  to  the  question  of  fact,  the  trial  judge 
should  instruct  the  jury  that  counsel  have  no  right  to 
express  their  opinions  on  such  matters."  2  Nor  is  a 

1  Campbell,  Lives  of  the  Chief  Justicei  of  England,  Vol.  IV, 
pp.  297,  298. 

2  Carter,  Ethics  of  the  Legal  Profession,  p.  47. 


78         THE    YOUNG    MAN    AND    THE    LAW 

lawyer  ever  bound  to  state  to  the  court  his  own  opinion 
on  any  point  of  law,  which  he  may  be  trying  to  main- 
tain. His  opinion  may  be  against  the  claim  which  he  is 
making  for  his  client,  and  which  he  ought  to  make  in 
his  behalf.  His  obligation  is  to  present  that  view 
whether  as  to  law  or  fact  which  is  most  favorable  to  his 
client,  if  it  seems  to  him  to  be  possibly  tenable ;  and  to 
present  it  in  the  strongest  light  which  he  can  bring  to 
focus  on  it.  His  own  personal  opinions  are  not  in 
question. 

Baron  Bramwell,  who  was  one  of  the  leading  judges 
of  his  day  in  England,  said: 

"  A  man's  rights  are  to  be  determined  by  the  court,  not 
by  his  attorney  or  counsel.  It  is  for  the  want  of  remem- 
bering this  that  foolish  people  object  to  lawyers  that  they 
will  advocate  a  case  against  their  own  opinions.  A  client  is 
entitled  to  say  to  his  counsel,  I  want  your  advocacy,  not 
your  judgment;  I  prefer  that  of  the  court."  x 

The  same  thought  was  expressed  more  recently,  in 
referring  to  a  claim  put  forward  by  counsel,  by  Lord 
Chancellor  Halsbury  (as  quoted  in  the  London  Law 
Notes  for  October,  1899),  in  these  words: 

"  A  thesis  has  been  propounded  on  the  other  side  more 
extravagant,  and  certainly  more  impossible  of  fulfillment; 
that  is,  that  an  advocate  is  bound  to  convince  himself,  by 
something  like  an  original  investigation,  that  his  client  is 
in  the  right,  before  he  undertakes  the  duty  of  acting  for 
him.  I  think  such  a  contention  ridiculous,  impossible  of 
performance,  and  calculated  to  lead  to  great  injustice.  If 
an  advocate  were  to  reject  a  story  because  it  seemed  im- 

i  Johnson  v.  Emerson,  Law  Reports,  6  Exchequer,  p.  367. 


OBJECTIONS    TO    THE    PROFESSION          79 

probable  to  him,  he  would  be  usurping  the  office  of  the 
judge,  by  which  I  mean  the  judicial  function,  whether  that 
function  is  performed  by  a  single  man,  or  by  the  composite 
arrangement  of  judge  and  jury  which  finds  favor  with  us. 
Very  little  experience  of  courts  of  justice  would  convince 
any  one  that  improbable  stories  are  very  often  true,  not- 
withstanding their  improbability." 

Lord  Erskine,  in  his  defense  of  Thomas  Paine, 
painted  in  strong  colors  the  injustice  that  might  be  done 
to  one  charged  with  crime,  for  whom  a  lawyer  of  prom- 
inence should  refuse  to  appear.  "  If,"  he  said,  "  the 
advocate  refuses  to  defend,  from  what  he  may  think  of 
the  charge  or  the  defense,  he  assumes  the  character  of 
the  judge;  nay,  he  assumes  it  before  the  hour  of  judg- 
ment; and,  in  proportion  to  his  rank  and  reputation, 
puts  the  heavy  inference  of  perhaps  mistaken  opinion 
into  the  scale  against  the  accused,  in  whose  favor  the 
benevolent  principle  of  English  law  makes  all  presump- 
tions, and  which  commands  the  very  judge  to  be  his 
counsel."  1 

Judge  Ellsworth,  afterward  chief  justice  of  the 
United  States,  said  to  Jeremiah  Evarts,  who  was 
anxiously  inquiring  as  to  the  right  of  a  lawyer  to  main- 
tain the  side  of  a  lawsuit  that  was  doubtful  or  wrong, 
"  any  cause  that  is  fit  for  any  court  to  hear  is  fit  for 
any  lawyer  to  present  on  either  side."  Neither  judge 
nor  lawyer  can  with  certainty  determine  the  real  right 
of  a  cause  until  both  sides  are  heard ;  and  even  then  the 
weakness  and  the  wrong  which  cling  to  almost  every 

i  Campbell's  Lives   of  the  Lord  Chancellors,  London,   1846-69, 
VIII,  296. 


80        THE    YOUNG    MAN    AND    THE    LAW 

thought  and  act  and  judgment  of  man  too  frequently 
prevent  complete  justice. 

Sir  Matthew  Hale,  in  the  early  years  of  his  practice, 
had  much  misgiving  about  undertaking  causes  in  which 
he  did  not  thoroughly  believe,  but  lived  to  change 
his  opinion,  as  case  after  case  which  he  had  refused  to 
consider  was  finally  decided  to  be  abundantly  good. 

A  lawyer  may  well  undertake  a  doubtful  cause,  but 
never  can  he  righteously  advocate  what  he  knows  is  not 
law,  nor  can  he  counsel  or  assist  in  the  evasion  or  dis- 
regard of  law.  It  is  one  thing  to  secure  for  a  client 
his  rights  concerning  a  past  transaction,  to  insist  that 
his  guilt  be  legally  proven,  to  claim  in  his  behalf  all  that 
to  which  he  is  by  law  entitled.  It  is  another  thing  to 
counsel  and  assist  concerning  a  future  course  of  action 
which  either  evades  or  disregards  the  law. 

A  passage  of  fervid  oratory  has  been  often  quoted 
from  the  speeches  of  Lord  Brougham,  in  which  before 
the  House  of  Lords  in  defense  of  Queen  Caroline  he  put 
forward  an  impressive,  but  untrue,  picture  of  the  duty 
of  an  advocate.  It  is  this : 

"  I  once  before  took  occasion  to  remind  your  Lordships, 
which  was  unnecessary,  but  there  are  many  whom  it  may 
be  needful  to  remind,  that  an  advocate  by  the  sacred  duty 
which  he  owes  his  Client,  knows  in  the  discharge  of  that 
office  but  one  person  in  the  world,  that  Client  and  none 
other.  To  save  that  Client  by  all  expedient  means,  to 
protect  that  Client  at  all  hazards  and  costs  to  all  others, 
and  among  others  to  himself,  is  the  highest  and  most  un- 
questioned of  his  duties ;  and  he  must  not  regard  the  alarm, 
the  suffering,  the  torment,  the  destruction  which  he  may 


OBJECTIONS    TO    THE    PROFESSION         81 

bring  upon  any  other.  Nay,  separating  even  the  duties  of 
a  parent  from  those  of  an  advocate,  and  casting  them,  if 
need  be,  to  the  wind,  he  must  go  on  reckless  of  the  conse- 
quences, if  his  fate  it  should  unhappily  be  to  involve  his 
country  in  confusion  for  his  Client's  protection." 

Brougham  later  repudiated  this  doctrine,  writing  that 
it  was  proclaimed  in  the  course  of  a  political  trial  as  a 
political  menace.1 

The  true  view  was  well  stated  by  Lord  Chief  Justice 
Cockburn,  at  a  banquet  in  the  Middle  Temple  Hall,  in 
honor  of  M.  Berryer,  in  which  he  spoke  in  these  words : 

"  Much  as  I  admire  the  great  ability  of  Monsieur 
Berryer,  to  my  mind  his  crowning  virtue  —  as  it  ought 
to  be  of  every  advocate  —  is,  that  he  has  throughout  his 
career  conducted  his  cases  with  untarnished  honor.  The 
arms  which  an  advocate  wields  he  ought  to  use  as  a  warrior, 
and  not  as  an  assassin.  He  ought  to  uphold  the  interests 
of  his  clients  per  fas,  and  not  per  nefas.  He  ought  to 
know  how  to  reconcile  the  interests  of  his  clients  with  the 
eternal  principles  of  truth  and  justice."  2 

The  protection  of  law,  like  the  showers  from  the 
heavens,  descends  upon  the  just  and  the  unjust,  alike. 
Who  indeed  is  to  say  which  side  in  a  lawsuit  is  in  the 
right?  Who  is  to  determine  the  guilt  or  innocence  of 
one  prosecuted  for  crime?  These  are  necessary  func- 
tions of  judges  and  juries,  rather  than  lawyers. 

Boswell  once  asked  Dr.  Johnson  if  a  lawyer  could 
honestly  support  a  cause  which  he  knew  to  be  bad. 
"  Sir,"  was  the  reply,  "  you  do  not  know  it  to  be  good 

1  Forsyth,  History  of  Lawyers,  New  York,  1875,  p.  380. 

2  Crispe,  Reminiscences  of  a  K.  C.,  p.  73. 


82    THE  YOUNG  MAN  AND  THE  LAW 

or  bad  till  the  judge  determines  it.  I  have  said  that 
you  are  to  state  facts  fairly ;  so  that  your  thinking,  or 
what  you  call  knowing,  a  cause  to  be  bad,  must  be  from 
reasoning,  must  be  from  your  supposing  your  argu- 
ments to  be  weak  and  inconclusive.  But,  sir,  that  is  not 
enough.  An  argument  which  does  not  convince  your- 
self, may  convince  the  judge  to  whom  you  urge  it;  and 
if  it  does  convince  him,  why,  then,  sir,  you  are  wrong, 
and  he  is  right.  It  is  his  business  to  judge;  and  you 
are  not  to  be  confident  in  your  own  opinion  that  a  cause 
is  bad,  but  to  say  all  you  can  for  your  client,  and  then 
hear  the  judge's  opinion."  1 

At  a  subsequent  period,  the  subject  came  up  again 
during  a  conversation  in  the  course  of  which  one  of  the 
company,  Sir  William  Forbes,  remarked  that  "  he 
thought  an  honest  lawyer  should  never  undertake  a 
cause  which  he  was  satisfied  was  not  a  just  one." 
"  Sir,"  said  Johnson,2  "  a  lawyer  has  no  business  with 
the  justice  or  injustice  of  the  cause  which  he  under- 
takes, unless  his  client  asks  his  opinion,  and  then  he  is 
bound  to  give  it  honestly.  The  justice  or  injustice  of 
the  cause  is  to  be  decided  by  the  judge.  Consider,  sir, 
what  is  the  purpose  of  courts  of  justice?  It  is,  that 
every  man  may  have  his  cause  fairly  tried,  by  men  ap- 
pointed to  try  causes.  A  lawyer  is  not  to  tell  what  he 
knows  to  be  a  lie :  he  is  not  to  produce  what  he  knows  to 
be  a  false  deed;  but  he  is  not  to  usurp  the  province  of 

1  Boswell,  Life  of  Samuel  Johnson,  New  York,  1856,  Vol.  I,  p. 
245. 

2  Boswell,  Ibid.,  p.  328. 


OBJECTIONS    TO    THE    PROFESSION          83 

the  jury  and  of  the  judge,  and  determine  what  shall  be 
the  effect  of  evidence, —  what  shall  be  the  result  of  legal 
argument.  As  it  rarely  happens  that  a  man  is  fit  to 
plead  his  own  cause,  lawyers  are  a  class  of  the  com- 
munity, who,  by  study  and  experience,  have  acquired  the 
art  and  power  of  arranging  evidence,  and  of  applying 
to  the  points  at  issue  what  the  law  has  settled.  A 
lawyer  is  to  do  for  his  client  all  that  his  client  might 
fairly  do  for  himself,  if  he  could.  If,  by  a  superiority 
of  attention,  of  knowledge,  of  skill,  and  a  better  method 
of  communication,  he  has  the  advantage  of  his  adver- 
sary, it  is  an  advantage  to  which  he  is  entitled.  There 
must  always  be  some  advantage,  on  the  one  side  or  the 
other ;  and  it  is  better  that  advantage  should  be  had  by 
talents  than  by  chance.  If  lawyers  were  to  undertake 
no  causes  till  they  were  sure  they  were  just,  a  man  might 
be  precluded  altogether  from  a  trial  of  his  claim, 
though,  were  it  judicially  examined,  it  might  be  found  a 
very  just  claim." 

Cicero,  in  discussing  the  same  question,  speaks  with 
more  hesitation :  "  This  precept  of  duty  is  to  be  care- 
fully obeyed,  never  to  prosecute  an  innocent  person  on 
a  charge  of  a  capital  crime,  for  this  cannot  be  done 
without  guilt,  whatever  agreement  may  be  made.  Nor, 
the  less,  as  this  is  to  be  avoided,  is  it  to  be  held  a  sacred 
duty,  to  defend  a  guilty  man  sometimes ;  only  not  if  he 
be  nefarious  and  impious.  This  the  majority  of  the 
people  desire ;  usage  permits  ;  humanity  even  urges.  It 
is  the  part  of  a  judge  always  to  pursue  the  truth  in 
causes  heard  before  him;  of  an  advocate  (patroni) 


84         THE    YOUNG    MAN    AND    THE    LAW 

sometimes  to  defend  what  looks  like  the  truth,  even  if 
it  be  less  than  true."  1 

It  must  always  be  remembered,  not  only  that  every 
man  who  is  sued  in  court  must  be  heard  in  defense,  unless 
he  waives  it,  or  acknowledges  that  he  is  in  the  wrong, 
but  that  he  can  only  be  heard  to  good  purpose,  through 
a  lawyer. 

Hence  no  one  at  the  English  bar  can,  without  the 
approval  of  the  benchers,  refuse  to  accept  a  retainer  for 
the  defendant  in  a  criminal  cause.  For  the  American 
bar  there  is  no  such  rule,  but  the  reason  for  it  equally 
exists.  It  controlled,  in  a  noted  instance,  the  profes- 
sional conduct  of  William  Wirt,  afterwards  Attorney 
General  of  the  United  States.  In  1806,  George  Wythe, 
a  signer  of  the  Declaration  of  Independence,  and  Chan- 
cellor of  Virginia,  lived  in  Richmond,  and  a  nephew 
named  Swinney,  to  whom  it  was  known  that  he  had  left 
most  of  his  property  by  will,  was  one  of  his  family. 
One  morning  Swinney  came  into  the  kitchen  and  in  the 
presence  of  a  negro  cook,  dropped  what  she  described  as 
something  white  in  the  coffee  pot.  The  Chancellor 
soon  after  breakfast  became  violently  ill,  with  symptoms 
of  arsenical  poisoning.  A  man  servant  drank  of  the 
same  coffee  and  died  with  similar  symptoms.  The  coffee 
grounds  were  thrown  out  in  the  back  yard,  and  some 
chickens  which  ate  them  died.  An  examination  by 
chemists  showed  the  presence  of  arsenic  in  the  coffee 
grounds,  in  large  quantity. 

i  Cicero,  De  Officiis,  Lib.  Ill,  Cap.  14. 


OBJECTIONS    TO    THE    PROFESSION         85 

The  Chancellor  lived  long  enough  to  alter  his  will  and 
revoke  its  dispositions  in  favor  of  his  nephew,  who  was 
soon  afterwards  indicted  for  murder. 

Swinney's  mother  applied  to  Wirt  to  defend  him. 
He  took  counsel  with  one  of  the  judges  of  the  State, 
who  advised  him  strongly  to  do  so,  and  said  that  he 
ought  not  to  hesitate  a  moment.  He  accepted  the  re- 
tainer and  appeared  for  the  accused. 

There  was  a  perfect  defense.  The  law  of  Virginia  at 
that  period  excluded  the  testimony  of  negro  witnesses 
when  offered  against  a  white  man.  The  negro  cook  was 
the  only  witness  that  could  connect  Swinney  with  the 
crime.  She  being  excluded,  the  jury,  when  the  case 
came  on,  rendered  a  verdict  of  acquittal.1 

Wirt  was  right.  If  Virginia  then  had  an  ill-con- 
sidered statute,  which  prevented  the  State  from  offering 
legal  proof  of  the  guilt  of  the  accused,  the  defense  was 
perfect.  Swinney  could  have  honestly  raised  that 
point,  for  himself,  had  he  known  what  every  lawyer 
knew,  namely,  the  objection  to  the  evidence  and  the 
proper  manner  of  taking  advantage  of  it.  Not  know- 
ing these  things,  he  was  entitled  to  ask  the  aid  of  those 
who  did. 

JBut  such  a  case  as  that  is  extremely  unusual.  In 
most  matters  in  which  counsel  are  asked  to  engage, 
there  may  well  be  a  difference  of  opinion  as  to  the  rights 
of  the  parties.  Plain  cases  are  seldom  tried.  In  every 
legal  controversy  there  are  apt  to  be  some  points  favor- 

i  Kennedy,  Memoirs  of  William  Wirt,  New  York,  1872,  Vol.  J, 
p.  140. 


86    THE  YOUNG  MAN  AND  THE  LAW 

able  to  the  plaintiff  and  some  favorable  to  the  defend- 
ant. It  was  the  remark  of  an  eminent  English  lawyer 
of  large  experience  that  men  usually  imagine  that  all 
law  suits  are  either  black  or  white,  whereas  the  great 
majority  are  neither  black  nor  white,  but  gray. 

There  are  many  also  as  to  which  an  impartial  eye 
can  see  that  they  can  fairly  be  decided  for  either  party, 
though  to  each  of  them  an  adverse  judgment  would 
look  like  the  rankest  injustice.  A  lawyer  is  naturally 
inclined  to  share  his  client's  point  of  view.  Once  in  a 
cause  he  is  apt  to  grow  more  and  more  confident  that  it 
is  a  meritorious  one.  He  studies  it  from  the  position 
of  an  advocate.  His  mind  becomes,  as  to  this  subject 
of  discussion,  more  and  more  identified,  so  to  speak, 
with  that  of  his  client. 

Joubert  said  that  it  is  a  great  disadvantage  in  a  dis- 
putation to  be  impressed  with  the  weakness  of  your  own 
claims  and  with  the  strength  of  those  of  your  adver- 
sary.1 The  lawyer  seldom  finds  himself  in  such  a  posi- 
tion. He  looks  at  things  through  his  client's  eyes. 
He  has  thought  over  his  points,  till  they  seem  convinc- 
ing, and  found  an  answer  of  some  kind  to  every  con- 
tention which  he  thinks  likely  to  be  put  forward  by  the 
other  side. 

All  civilized  nations  have  not  created  the  legal  pro- 
fession, and  created  it  as  soon  as  they  even  approached 
civilization,  without  a  real  justification  for  it.  There 

i  Penstes,  No.  639,  "  C'est  un  grand  disadvantage,  dans  le  dis- 
pute, d'etre  attentif  a  la  faiblesse  de  ses  raisons,  et  attentif  a  la 
force  des  raisons  autres," 


OBJECTIONS    TO    THE    PROFESSION         87 

would  be  none,  if  its  members  were  expected  to  be  cheats 
and  liars.  As  Coleridge  has  said,  in  his  Biographia 
Literaria,  "  it  would  be  a  sort  of  irreligion,  and  scarcely 
less  than  a  libel  on  human  nature  to  believe  that  there  is 
any  established  and  reputable  profession  or  employ- 
ment in  which  a  man  may  not  continue  to  act  with  hon- 
esty and  honor." 

2.  The  Tendency  of  the  Legal  Profession  to  Foster  a 
Spirit  of  Roughness  and  Antagonism 

Habits  form  character.  A  lawyer  risks  becoming  hypercritical; 
first  a  fault-finder  in  court  and  then  at  home.  He  must  learn 
not  to  treat  any  legal  controversy  as  his  own.  Nor  every  hostile 
witness  as  a  liar. 

A  man's  intellectual  habits  are  a  large  part  of  him. 
They  go  far  to  determine  the  quality  of  his  life,  and  its 
success.  In  forming  them,  then,  he  should  be  careful  to 
avoid  any  that  would  militate  against  his  own  happiness 
or  that  of  others.  In  choosing  a  calling,  he  should 
carefully  consider  what,  if  any,  will  be  its  effect  in  this 
direction. 

Law  is  a  science  of  reciprocal  relations.  Those  who 
cultivate  it  are  naturally  led  to  draw  fine  distinctions, 
and  will  often  have  to  choose  between  opposite  opinions. 
These  will  require  critical  examination  and  close  com- 
parison. 

A  lawyer,  in  the  ordinary  course  of  his  practice  in 
court,  is  continually  questioning  or  denying  the  sound- 
ness of  the  propositions  put  forward  by  his  professional 
opponent.  There  is  always  danger  that  a  habit  of  mind 


88         THE    YOUNG    MAN    AND    THE    LAW 

will  be  thus  formed,  or  at  least  a  spirit  of  hostile  crit- 
icism encouraged,  which  will  follow  him  out  of  the  court 
room,  and  become  a  characteristic  of  his  life. 

An  English  barrister,  alluding  to  this  tendency  to- 
wards contradiction  of  what  others  say,  acquired  at  the 
bar,  remarks  that 

"  In  many  a  case  the  caustic  tone,  assumed  at  the  outset 
as  a  professional  weapon,  becomes  habitual  and,  without 
the  speaker's  knowledge,  gives  more  pain  within  his  home, 
than  in  Westminster  Hall."  1 

So  a  lawyer  must  be  on  his  guard  against  bringing  the 
technical  practices  and  habits  of  the  bar  in  matters  of 
procedure  into  the  intercourse  of  general  society. 

It  is  said  of  Lord  Chief  Justice  Tenterden,  to  whom 
forms  were  of  the  essence  of  any  judicial  establishment, 
that  once,  at  a  "  circuit  dinner,"  at  which  he  presided, 
"  having  asked  a  country  magistrate  if  he  would  take 
venison,  and  receiving  what  he  deemed  an  evasive  reply : 
4  Thank  you,  my  Lord,  I  am  going  to  take  boiled 
chicken,'  his  Lordship  sharply  retorted,  *  That,  sir,  is 
no  answer  to  my  question;  I  asjc  you  again  if  you  will 
take  venison,  and  I  will  trouble  you  to  say  yes  or  no, 
without  further  prevarication ! '  "  2  The  story,  true  or 
not,  is  no  bad  illustration  of  a  real  pitfall  into  which 
every  lawyer  and  every  judge  runs  some  risk  of  falling. 
It  is  sadly  easy  for  him  to  sink  into  the  condition  of 
an  habitual  faultfinder. 

1  Jeaffreson,  A  Book  about  Lawyers,  p.  324. 

2  Campbell,  Lives  of  the  Chief  Justices  of  England,  New  York, 
1873,  Vol.  IV,  pp.  302,  343. 


OBJECTIONS    TO    THE    PROFESSION         89 

The  man  who  is  always  carping,  and  contradicting, 
and  pointing  to  weak  spots  in  the  conduct  of  other  peo- 
ple, will  make  few  friends,  and  deserve  few.  There  is  to 
every  trial  lawyer  a  subtle  and  half  hidden  temptation 
to  drop  into  such  a  mental  habit.  Most  of  them  re- 
sist it  effectually.  A  few  fall  under  the  spell,  but  there 
is  no  reason  why  any  should.  The  contests  of  the 
court  house  can  be  absolutely  dropped  when  the  case  is 
finished ;  nor,  if  conducted  in  a  proper  spirit  of  profes- 
sional fraternity,  need  they  ever  lead  to  ill-feeling  at  the 
bar.  Still  less  need  they  disturb  the  lawyer's  social 
relations  with  anybody. 

A  lawyer  represents  his  client's  case,  but  not  his  cli- 
ent's personal  feelings  or  qualities  of  character.  His 
conscience  remains  in  his  own  custody.  As  was  said  by 
the  late  Thomas  H.  Hubbard,  the  founder  of  a  lecture- 
ship in  Legal  Ethics  in  the  Law  Department  of  Union 
University, — "  the  controversy,  with  all  its  attendant 
exasperations,  is  the  client's  controversy.  Its  asperi- 
ties, its  irritations,  its  impulses,  its  interests,  are  not 
the  lawyer's,  save  as  he  receives  them  from  the  client. 
If  he  receives  them  in  bulk,  as  a  common  carrier  re- 
ceives all  goods  that  are  offered ;  if,  as  the  servant  of  the 
client,  he  carries  them  through  all  the  portals  and  into 
the  temple  of  justice;  if  he  surrenders  his  own  convic- 
tions to  the  wishes  of  his  client,  then  he  gives  to  his  cases 
the  elements  that  retard  justice  and  bring  the  practice 
of  the  law  into  disrepute.  He  obtrudes  upon  the  court 
the  passion,  the  prejudice,  the  unreason  of  the  client. 
These  should  be  left  outside  the  court-house  door.  The 


90    THE  YOUNG  MAN  AND  THE  LAW 

controversy  that  crosses  the  threshold  should  be  a  con- 
troversy sifted  by  the  intelligence  and  shaped  by  the 
conscience  of  the  lawyer.  It  should  be  the  essence  of 
honest  difference  in  the  assertion  of  rights,  not  the  tur- 
moil of  personal  dispute."  * 

A  lawyer  must,  no  doubt,  also  be  on  his  guard  against 
allowing  his  disbelief  in  the  testimony  of  a  hostile  wit- 
ness to  lead  to  a  line  of  treatment  on  cross-examination, 
which  is  unfair  or  unnecessarily  rough.  Most  men 
mean  to  tell  the  truth  on  the  witness  stand,  and  a  lawyer 
must  always  remember  that  every  witness  must  testify 
from  his  own  standpoint,  which  cannot,  in  mind  or  body, 
be  precisely  that  of  any  one  else. 

Nor  does  a  harsh  cross-examination,  under  most  cir- 
cumstances, make  a  favorable  impression  either  on  the 
court  or  jury.  An  English  judge  once  interrupted  a 
discourteous  and  savage  cross-examination  by  saying 
to  the  offending  barrister,  "  You  seem  to  think  that  the 
art  of  cross-examination  is  to  examine  crossly." 

There  is  a  real  danger  here  of  injuring  one's  client, 
while  trying  to  serve  him,  and  of  injuring  oneself,  as 
well.  It  is  not  always  a  danger  apparent  to  the  lawyer, 
himself,  nor  therefore  one  against  which  it  is  easy  to 
guard.  At  best  a  court  of  law  is  not  a  school  of  good 
manners.  It  has  to  do  with  people  of  all  sorts  and 
conditions.  In  every  trial  two  interests  are  opposed 
and  each  has  its  chosen  champion.  A  certain  duty  of 
antagonism  is  involved,  on  the  part  of  each  of  them. 

i  Lectures  delivered  before  the  Students  of  Law  Department  of 
Union  University,  1903,  p.  16. 


OBJECTIONS    TO    THE    PROFESSION         91 

Each  is  to  keep  out  all  testimony  which  has  no  bearing 
on  the  cause,  or  which  is  adverse  to  his  client,  and  is  of 
a  kind  which  is  excluded  by  legal  rules.  He  must  act 
promptly  if  he  does  his  duty  in  these  respects.  He  can- 
not always  stop  to  make  a  nice  choice  of  words.  He 
is  often  tempted  to  speak  sharply  to  a  witness  or  to  the 
opposing  lawyer,  and  is  not  unlikely  sometimes  to  yield 
to  the  temptation.  As  often  as  he  does,  he  increases 
the  risk  that  his  professional  habits  may  prejudice  the 
peace  of  his  own  household. 

3.  The  Charge  that  Legal  Procedure  is  Antiquated  and 

Unfair 

The  necessity  of  known  rules  of  procedure.  The  chain  of  ig- 
norance, procedure,  knowledge,  and  justice.  Remedies  presup- 
pose rights.  Summum  jus,  summa  injuria.  The  uncodified  com- 
mon law.  Its  constant  change.  The  Roman  law  never  fully  codi- 
fied. How  courts  add  to  law.  Violation  of  rules  of  procedure 
may  defeat  a  meritorious  cause.  Artificiality  in  rules  of  evidence. 
Is  an  incident  of  our  jury  system.  Becomes  less  as  jurors  have 
more  education.  The  uses  and  abuses  of  a  jury.  Its  guidance 
by  the  court.  Excessive  multiplication  of  law  reports.  Unofficial 
reporting.  The  citations  of  decisions. 

The  whole  of  that  law  which  is  administered  by  law- 
yers is  bound  up  with  the  modes  and  forms  of  judicial 
procedure.  It  cannot  be  otherwise.  Courts  exist  to 
do  justice  between  man  and  man,  but  always  by  follow- 
ing certain  prescribed  rules  and  methods.  To  give 
them  an  opportunity  to  act,  causes  of  controversy  must 
be  brought  before  them,  and  brought  before  them  in  a 
proper  way.  Judges  do  not  play  the  part  of  policemen, 


92         THE    YOUNG    MAN    AND    THE    LAW 

and  walk  the  streets  with  a  view  to  preventing  wrong  or 
arresting  the  wrong  doer.  Nor  do  they  take  the  place 
of  teachers  and  announce  certain  doctrines  to  which 
men  generally  must  conform.  They  are  only  concerned 
with  announcing  or  recognizing  such  as  govern  certain 
relations  of  the  parties  to  a  particular  law  suit.  The 
steps  that  throw  upon  them  this  responsibility  are  such 
as  only  lawyers  know  how  to  take.  In  early  political 
societies  they  are  very  formal.  Civilization  simplifies 
them  but,  however  high  it  may  rise,  courts  still  remain  a 
device  for  doing  justice  through  a  prescribed  mode  of 
procedure.  This  mode  is  prescribed  because  it  is  gen- 
erally deemed  fair,  or  else  was  at  one  time  generally  so 
deemed  and  is  not  now  generally  deemed  unfair.  It  is 
prescribed  in  advance  of  any  resort  to  it;  and  by  the 
State.  Being  a  body  of  public  rules  by  which  all  are 
bound,  and  to  substantial  obedience  to  which  all  are  en- 
titled, this  obedience  is  a  necessary  condition  of  getting 
justice  or  doing  justice. 

Chief  Justice  Bleckley  of  Georgia  has  put  this  very 
clearly : 

"  The  problem  for  the  judicial  mind  as  a  whole,  whether 
all  on  the  bench  or  some  in  the  jury  box,  is  to  pass  from 
ignorance  to  justice.  Every  Court,  (by  which  I  mean  the 
aggregate  of  the  deciding  power,)  though  it  may  know 
beforehand  the  general  law  and  facts  common  alike  to  all 
cases,  or  to  all  of  any  given  class,  is  ignorant  of  the  special 
law  and  facts  involved  in  any  particular  case.  While  this 
ignorance  continues  justice  is  not  discernible,  and  hence 
there  is  no  way  to  pass  immediately  from  ignorance  to 
justice  unless  by  mere  chance,  by  casting  lots  or  otherwise 


OBJECTIONS    TO    THE    PROFESSION         93 

appealing    to    fortune.     To    pass    intelligently,    ignorance 
must  be  succeeded  by  knowledge,  the  steps  being,  first,  from 
ignorance  to  knowledge  of  truth,  and,  secondly,  from  knowl- 
edge of  truth  to  justice.     The  means  of  making  this  move- 
ment is  procedure;  and  so,  with  ignorance  at  one  extreme 
and  justice  at  the  other,  the  whole  line,  filled  up,  is  as 
follows:  ignorance,  procedure,  knowledge,  justice.     Knowl- 
edge being  indispensable  to  justice,  and  procedure  indis- 
pensable to  knowledge,  procedure  is  the  portal,  the  only 
portal,  to  justice.     Without  it  a  Court  could  not  distinguish 
from  inj  ustice  —  could  not  recognize  or  identify  j  ustice,  so 
as   to  determine   either   its   presence   or  its   absence.     No 
matter,  therefore,  on  which  side  of  a  case  justice  may  be, 
or  whether  partly  on  one  side  and  partly  on  the  other, 
procedure  is  something  in  which  both  parties  have  an  in- 
terest, to  say  nothing  of  the  interest  in  it  of  the  Court  or 
of  the  public  as  the  only  means  of  carrying  on  judicial  work 
and  making  Courts  available.     This  interest  of  the  parties 
is  so  important  that  every  rule  of  procedure,  unless  purely 
discretionary  with  the   Court   (as   some  of  them  are),  is 
always  attended  with  a  corresponding  right  of  procedure, 
vested  in  one  or  both  of  the  parties,  each  party  having  the 
rights  appropriate  to  his  position  in  the  case  as  plaintiff 
or  defendant.     The  result  is,  that  incident  to  these  rights 
there  is  a  body  of  remedial  justice  —  justice  of  procedure, 
which  is  altogether  apart  from  and  quite  independent  of 
justice  of  substance,  or  the  ultimate  justice  of  the  case. 
Relatively  to  procedure,  any  and  every  case  is  just  on  both 
sides,  for  each  side  has  rights  of  procedure,  and  it  is  just 
that  these  rights  should  be  allowed  and  administered  accord- 
ing  to   the   rules   which   grant   and    govern   them.     It   is 
through  rights  of  procedure  that  rights  of  substance  are 
judicially  ascertained;  through  justice  of  procedure  justice 
of  substance  is  administered."  1 

i  Bleckley,  Truth  at  the  Bar,  p.  6. 


94         THE    YOUNG    MAN    AND    THE    LAW 

Legal  procedure  rests  on  the  principle  that  where 
there  is  a  right,  there  must  be  a  remedy  for  its  enforce- 
ment and  against  its  violation.  Ubi  jus,  ibi  remedium. 
Equally  is  it  its  doctrine  that  where  a  claim  of  right  is 
founded  on  a  wrong,  the  law  will  give  no  remedy.  Ex 
turpi  causa  actio  non  oritur. 

In  a  case  arising  in  Wisconsin,  a  lawyer  sought  to 
recover  fees  which  he  claimed  to  have  earned  by  legal 
services  under  a  retainer  to  influence  a  public  prosecut- 
ing officer  to  allow  one  charged  with  crime  to  get  off 
with  a  minimum  of  punishment.  The  court  held  that 
such  a  contract  was  against  sound  morals,  and  could 
not  be  enforced  although  the  services  were  rendered,  and 
were  successful.  In  giving  the  judgment  of  the  court, 
Chief  Justice  Ryan  used  this  language : 

"  The  profession  of  the  law  is  not  one  of  indirection, 
circumvention,  or  intrigue.  It  is  the  function  of  the  pro- 
fession to  promote,  not  to  obstruct  the  administration  of 
justice.  In  litigation  the  lawyer  becomes  the  alter  ego  of 
his  client;  and  professional  retainer  rests  in  absolute  and 
sacred  confidence.  But  the  duty  imposed  by  professional 
retainer  is  direct  and  open.  Professional  function  is  exer- 
cised in  the  sight  of  the  world.  Professional  learning  and 
skill  are  the  only  true  professional  strength.  Forensic 
ability  is  the  only  true  professional  influence  on  the  course 
of  justice.  Private  preparation  goes  to  this  only  as  sharp- 
ening the  sword  goes  to  battle.  Professional  weapons  are 
wielded  only  in  open  contest.  No  weapon  is  professional 
which  strikes  in  the  dark.  The  work  of  the  profession  is 
essentially  open  because  it  is  essentially  moral.  No  re- 
tainer in  wrong  is  professional.  A  lawyer  may  devote  him- 
self professionally  to  the  legitimate  business  of  his  client, 


OBJECTIONS    TO    THE    PROFESSION         95 

but  he  cannot  be  retained  in  whatever  may  not  be  rightfully 
and  lawfully  done.  He  may  defend  a  wrong  done  in  the 
past,  but  he  cannot  be  privy  to  the  doing  of  a  wrong  in 
the  present.  The  profession  is  not  sinless,  but  its  sins 
are  all  unprofessional.  When  a  member  of  the  bar  is  privy 
to  the  wrong-doing  of  his  client,  he  is  his  client's  accom- 
plice, not  his  lawyer."  ] 

Courts  of  justice  may  become,  in  rare  cases  and  for 
the  purposes  of  a  particular  judgment,  courts  of  injus- 
tice. This  is  part  of  the  necessary  order  of  things, 
under  a  system  of  permanent  rules  of  procedure  and 
decision.  The  parties  would  not  be  justly  dealt  with, 
unless  the  court  applied  the  rules  as  they  exist,  notwith- 
standing it  may  support  the  maxim,  Summum  jus, 
summa  injuria.  Here  is  one  of  the  things  that  kings 
are  good  for.  Relief  must  be  sought  for  the  past  in  the 
pardoning  or  dispensing  power,  if  such  there  be;  and 
for  the  future  in  a  change  of  legislation. 

Legal  procedure  takes  its  color  from  the  nature  of 
the  law,  the  proper  effect  of  which  it  is  designed  to 
secure.  The  law  to  be  studied  and  invoked  by  Amer- 
ican lawyers  is  in  the  main  the  Anglo-American  com- 
mon law.  If  it  were  to  be  found  in  the  shape  of  a  code 
framed,  like  that  of  France,  a  century  or  more  ago,  its 
mode  of  expression  would  be  necessarily  somewhat  anti- 
quated ;  and  some  of  its  rules  might  well  be,  also.  But 
the  common  law,  never  having  been  wholly  and  sys- 
tematically reduced  to  written  form,  leaves  far  greater 
freedom  in  the  people,  if  not  the  courts,  to  make  im- 

i  Wight  v.  Rindskopff,  43  Wisconsin  Reports,  p.  344. 


96    THE  YOUNG  MAN  AND  THE  LAW 

provements  in  it,  adding  or  retrenching  from  time  to 
time,  in  conformity  with  the  spirit  of  the  age,  and 
agreeably  to  the  ripened  common  sense  which  gives  it 
character. 

It  is  this  which  has  kept  most  of  the  American  States 
from  endeavoring  to  codify  with  any  fullness  their  mu- 
nicipal law.  They  have  preferred  to  leave  it  mainly  un- 
fettered by  legislatures  and,  so  far  forth,  capable  of 
expansion  or  contraction,  according  to  popular  needs 
and  usages,  fortified  by  judicial  opinion. 

Law,  in  its  widest  sense,  indeed,  is  anything  but  sta- 
tionary. It  changes  and  must  change  as  the  views  of 
civilized  society  change. 

"  New  times  demand  new  measures  and  new  men. 
The  world  advances  and  in  time  outgrows 
The  laws  that  in  our  fathers'  day  were  best." 

There  are  great  advantages  in  trusting  to  a  common 
law,  the  creation  of  the  people,  rather  than  to  a  code, 
the  creature  of  legislation.  One  is  elastic;  the  other 
rigid.  One  registers  conclusions  reached  in  the  past; 
the  other  rules  laid  down  for  the  future. 

No  nation  has  ever  had  a  complete  system  of  codifica- 
tion. The  system  has  rested  on  remoter  rules  of  con- 
duct, not  officially  formulated,  which  from  time  to  time 
have  vindicated,  or  may  vindicate,  their  right  to  exist, 
by  their  harmonious  relations  to  the  life  and  wants  of 
the  community. 

Those  who  have  never  read  them  sometimes  speak  of 
the  Pandects,  of  Roman  law,  or  the  Institutes  of  Justin- 


OBJECTIONS    TO    THE    PROFESSION         97 

ian,  as  a  code.  They  are  an  official  collection  of  legal 
definitions  and  principles  and  opinions  of  jurists,  but 
they  are  far  from  being  a  code  in  the  sense  of  the  civil 
code  of  France  or  the  German  Biirgerliche  Gesetzbuch. 
Sir  James  Stephen,  no  mean  authority,  in  the  introduc- 
tion to  his  work  on  Evidence,  speaks  of  them  thus : 

"  It  would  be  a  complete  mistake  to  suppose  either  that 
the  Roman  Law  is  in  substance  wiser  than  our  own,  or  that 
in  point  of  arrangement  and  method  the  Institutes  and  the 
Digest  are  anything  but  warnings.  The  pseudo-philosophy 
of  the  Institutes,  and  the  confusion  of  the  Digest,  are,  to 
my  mind,  infinitely  more  objectionable  than  the  absence  of 
arrangement  and  of  all  general  theories,  good  or  bad,  which 
distinguish  the  Law  of  England." 

This  quality  of  Anglo-American  law  renders  it  par- 
ticularly fitted  for  a  country  like  the  United  States 
where  there  are  over  fifty  States  and  Territories,  each 
exercising  legislative  power  and  each  mainly  independ- 
ent of  every  other.  In  the  common  law  they  have  all 
the  same  thing  to  work  from.  They  may,  or  they  may 
not,  come  to  the  same  results,  but  they  proceed  from  a 
common  point  of  departure. 

Let  us  consider  a  single  case  which  clearly  illustrates 
the  growth  of  municipal  law  in  judicial  practice  and  by 
judicial  power. 

A  deed  of  a  lot  of  land  in  a  city  of  Connecticut  was 
given,  in  which  it  was  bounded  on  a  private  passway. 
When  a  boundary  by  deed  is  given  as  on  a  public  high- 
way, the  law  of  that  State  had  always  construed  it  as 
presumptively  embracing  half  the  land  adjoining  that 


98         THE    YOUNG    MAN    AND    THE    LAW 

so  described,  which  is  occupied  by  that  highway,  sub- 
ject, of  course,  to  its  use  for  all  proper  highway  pur- 
poses. JBut  whether  the  conveyance  of  a  lot  bounding 
on  a  private  passway  presumptively  carried  the  title 
in  like  manner  to  half  the  land  used  for  the  passway  had 
never  been  determined  either  by  its  legislature  or  its 
courts.  More  than  twenty  years  after  such  a  convey- 
ance was  made,  the  claim  that  it  did  so  carry  title  was 
set  up  by  one  who  then  held  under  the  deed.  The  court 
overruled  the  contention,  in  an  opinion  from  which  the 
following  quotations  are  made : 

"  The  effect  of  a  deed  of  land  depends  on  the  words  in 
which  it  is  expressed,  aided,  if  necessary,  by  a  consideration 
of  the  circumstances  leading  up  to  its  execution  and  the 
situation  of  the  property.  The  ultimate  object  is  always 
to  give  its  terms  such  an  interpretation,  if  this  can  be  done 
without  straining  them  beyond  their  fair  import,  as  will 
carry  out  the  intention  which  the  parties  may  be  presumed 
to  have  had  in  employing  them.  .  .  . 

"  The  point  of  law  involved  has  been  differently  decided 
in  different  States.  In  Massachusetts  it  has  been  roundly 
held  that  a  deed  of  land  bounded  on  a  private  way,  laid 
out  over  land  of  the  grantor,  passes  the  fee  to  the  middle 
of  the  way,  where  there  is  nothing  in  the  deed  to  require  the 
opposite  construction.  Fisher  v.  Smith,  9  Gray  (Mass.) 
441,  444;  McKenzie  v.  Gleason,  184  Mass.  452,  69  N.  E. 
1076.  In  Maine  an  opposite  conclusion  has  been  reached. 
Ames  v.  Hilton,  70  Me.,  36,  43.  There  is  here  no  statute 
or  judicial  precedent  which  governs,  nor  any  general  custom 
of  which  we  can  take  judicial  notice.  The  question  is  one, 
also,  not  settled  by  the  common  law.  It  is  therefore  our 
duty  to  answer  it  by  the  choice  of  the  rule  which,  in  our 
judgment,  is  best  calculated  to  do  justice  in  cases  of  this 


OBJECTIONS    TO    THE    PROFESSION         99 

character.  This  we  have  done.  We  adopt  that  which  does 
not  raise,  in  case  of  a  boundary  on  a  private  way,  the  pre- 
sumption which  obtains  in  case  of  one  on  a  highway.  By 
that  rule,  because  it  is  (or  by  our  adoption  of  it  becomes 
for  Connecticut)  the  rule  of  justice,  it  may  fairly  be  as- 
sumed prima  facie  that  the  parties  to  such  a  transaction  in- 
tended to  be  governed,  by  force  of  the  words  which  they 
employed."  1 

Legal  science  has  been  not  infrequently  criticized  be- 
cause what  it  recognizes  as  the  law  of  pleading  or  of 
evidence  often  bars  out  any  investigation  into  the  sub- 
stantial merits  of  a  just  cause.  But  it  is  as  just  that  a 
man  should  be  compelled  to  state  or  prove  his  case  be- 
fore a  court  according  to  fixed  rules,  as  it  is  that  he 
should  have  a  just  case  to  present. 

Chief  Justice  Bleckley,  with  his  accustomed  clearness 
of  thought,  states  it  thus,  in  the  paper  to  which  refer- 
ence has  been  made  above : 

"  Some  meritorious  cases,  indeed  many,  are  lost  in  pass- 
ing through  the  justice  of  procedure;  but  they  are  all  justly 
lost,  provided  the  rules  of  procedure  have  been  correctly 
applied  to  them.  That  a  just  debt  is  unrecognized,  a  just 
title  defeated,  or  a  guilty  man  acquitted,  is  no  evidence  that 
justice  has  not  been  done  by  the  Court  or  the  jury.  It  may 
be  the  highest  evidence  that  justice  has  been  done,  for  it  is 
perfectly  just  not  to  enforce  payment  of  a  just  debt,  not  to 
uphold  a  just  title,  not  to  convict  a  guilty  man,  if  the  debt, 
or  the  title,  or  the  guilt  be  not  verified.  It  is  unjust  to  do 
justice  by  doing  injustice.  A  just  discovery  cannot  be 
made  by  an  unjust  search.  An  end  not  attainable  by  just 
means  is  not  attainable  at  all:  ethically,  it  is  an  impossible 

i  Seery  v.  Waterbury,  Vol.  62  Connecticut  Law  Reportt,  p.  567. 


100      THE    YOUNG    MAN    AND    THE    LAW 

end.  Courts  cannot  do  justice  of  substance  except  by  and 
through  justice  of  procedure.  They  must  not  reach  justice 
of  substance  by  violating  justice  of  procedure.  They  must 
realize  both,  if  they  can,  but  if  either  has  to  fail  it  must 
be  justice  of  substance,  for  without  justice  of  procedure 
Courts  cannot  know,  nor  be  made  to  know,  what  justice  of 
substance  is,  or  which  party  ought  to  prevail."  * 

Every  one  who  engages  in  the  legal  profession  is  at 
first  struck  and  repelled  by  the  artificiality  of  the  rules 
of  evidence.  In  trying  causes  in  court  there  is  the  same 
end  that  is  proposed  in  any  outside  inquiry,  which  may 
be  made  to  ascertain  what  are  the  facts  decisive  of  some 
controversy.  But  out  of  court,  no  door  through  which 
information  may  be  obtained  is  closed.  In  court,  on 
the  contrary,  the  exclusion  of  "  hearsay  "  evidence ;  the 
requirement  of  more  than  one  witness  in  certain  crim- 
inal prosecutions  ;  the  distinction  between  the  amount  of 
proof  demanded  in  criminal  cases  and  that  deemed  suf- 
ficient in  civil  cases ;  the  denial  of  resort  to  the  interro- 
gation of  one  accused  of  crime ;  and  the  exclusion  of  evi- 
dence which  the  judge  may  think  too  remote  or  uncer- 
tain ;  seem  to  surround  the  investigation  of  the  truth  by 
a  cloud,  though  by  no  means  a  "  cloud  of  witnesses." 

These  rules  have  come  in  mainly  as  incidents  of  our 
system  of  trial  by  jury,  but  in  part  also  from  our  high 
appreciation  of  the  dignity  and  worth  of  the  individual 
man. 

It  is  enough  to  say  that  as  juries  have  become  better 

i  Bleckley,  Truth  at  the  Bar,  p.  10. 


OBJECTIONS    TO    THE    PROFESSION       101 

educated,  there  is  continually  less  and  less  occasion  for 
guarding  them  from  being  led  off  into  irrelevant  in- 
quiries or  mistaken  conclusions,  and  that  judges,  who 
made  most  of  these  rules  of  evidence,  are  gradually  re- 
adjusting them  to  the  requirements  of  common  sense. 

At  first  sight,  it  would  seem  that  a  jury  trial  was  but 
a  poor  way  of  deciding  controversies.  Anacharsis  said 
of  Athens  that  in  her  assembly  the  wise  men  argued 
causes,  but  the  fools  decided  them.  A  keener  mind  put 
the  matter  in  a  clearer  light.  Aristotle  said  that  it  was 
safer  to  depend  on  the  judgment  of  the  many,  than  of 
the  few.  In  a  large  body  of  men  no  one  person  might 
be  particularly  eminent.  Nevertheless,  each  had  some 
valuable  quality  or  faculty  that  was  noticeable,  and  to- 
gether they  possessed  them  all. 

The  jury  is  not  as  numerous  as  an  Athenian  assem- 
bly, but  its  members  have  a  considerable  variety  of  qual- 
ities, and  something  of  what  is  addressed  to  them  in 
argument  is  pretty  sure  to  appeal  to  one  of  them,  if  it 
does  not  to  another.  It  is  a  reasonably  fair  miniature 
of  the  community. 

The  unwillingness  of  jurors  to  find  a  fellow-creature 
guilty  of  a  capital  felony,  even  on  the  clearest  evidence, 
is  notorious ;  and  it  may  well  be  suspected  that  they  fre- 
quently violate  their  oaths  in  favor  of  life.  In  civil 
suits,  on  the  other  hand,  they  too  often  forget  that  their 
duty  is  merely  to  give  the  plaintiff  compensation  for 
evil  suffered;  and  if  the  conduct  of  the  defendant  has 
moved  their  indignation  and  his  fortune  is  known  to  be 


102       THE    YOUNG    MAN    AND    THE    LAW 

large,  they  turn  themselves  into  a  criminal  tribunal  and, 
under  the  name  of  damages,  impose  a  large  fine.1 

A  jury  is  and  must  remain  an  indispensable  part  of 
the  machinery  of  justice,  under  the  terms  of  our  consti- 
tutions, state  and  national.  But,  as  to  almost  every 
other  conventional  feature  of  judicial  procedure,  the 
modern  tendency  is  to  invest  the  courts  with  power  to 
change  it  within  certain  limits  at  their  discretion. 
Some  have  naturally  gone  farther  than  others  in  exer- 
cising this  authority.  Only  a  strong  man,  with  a 
strong  court  behind  him,  can  venture  to  abrogate  a 
usage  of  centuries.  Chief  Justice  Doe  of  New  Hamp- 
shire may  be  mentioned  as  one  whose  work  in  this  field 
of  judicial  action  has  been  particularly  bold  and  thor- 
oughgoing.2 

Dean  Swift  complained,  two  hundred  years  ago,  in 
the  preface  to  Gulliver's  Travels,  that  he  had  hoped  at 
their  first  appearance  that  they  would  effect  something, 
and  that  he  should  hear  in  England  of  "  judges  learned 
and  upright ;  pleaders  honest  and  modest ;  with  some 
tincture  of  common  sense;  and  Smithfield  blazing  with 
pyramids  of  law  books."  Bench  and  bar  have  improved 
since  this  caustic  and  half  true  criticism  of  English  ju- 
dicial procedure  was  written,  but  the  law  books,  instead 
of  being  burned,  have  grown  ten-fold.  This  is  mainly 
from  the  enormous  increase  of  the  reports,  official  and 

1  Macaulay,  History  of  England,  Vol.  VIII,  p.  44. 

2  See  Lisbon  v.  Lyman,  49  IV.  H.  Law  Reports,  p.  382;  Darling 
v.  Westmoreland,  52  N.  H.  Law  Report*,  p.  401. 


OBJECTIONS    TO    THE    PROFESSION       103 

unofficial,  of  judicial  opinions.  The  modern  text-books 
in  law  are  mainly  based  on  these,  and  much  of  legal  in- 
struction comes  from  the  same  source. 

In  an  address  given  in  New  York  in  1915,  Lord  Chief 
Justice  Reading  said  that  he  was  strongly  impressed 
with  the  undesirability  of  the  constant  reporting  of  de- 
cisions which  lay  down  no  new  principle,  but  only  report 
the  application  of  old  principles  to  new  facts,  and  that 
the  members  of  the  bar  would  have  a  feeling  of  satisfac- 
tion if  they  could  get  rid  of  their  thousands  of  volumes 
of  decisions  so  that  they  might  base  themselves  on  the 
solid  principles  of  the  law. 

To  the  charge  then  that  the  established  system  of  re- 
porting judicial  decisions  and  the  uses  made  of  it,  if 
ever  defensible  are  so  no  longer,  there  is,  in  the  opinion 
of  the  writer,  no  good  answer.  It  is  antiquated.  It 
belongs  to  an  era  of  different  social  conditions.  It 
adds  enormously  to  a  lawyer's  office  expenses.  It  leads 
him  aside  from  the  consideration  of  the  principles  of  the 
law,  to  study  particular  instances  of  their  application, 
sought  out  not  for  purposes  of  illustration  but  for  use 
as  authority.  It  lengthens  his  briefs,  unduly :  it  deadens 
the  tone  of  his  arguments  to  the  court.  It  makes 
"  case-lawyers,"  whose  minds  move  in  a  narrow  circle. 

If  the  system  is  to  be  maintained,  these  evils  will 
grow.  Others  may  be  mentioned,  in  passing,  which  are 
also  threatening. 

The  ills  arising  from  the  publication  of  decisions  not 
worth  reporting  are  obvious.  There  has  been,  however, 
in  some  of  our  states  a  failure  to  publish  decisions, 


104      THE    YOUNG    MAN    AND    THE    LAW 

which  has  been  much  more  unfortunate.  In  a  state  of 
small  population,  or  where  the  judges  are  overbur- 
dened, or  think  they  are,  it  has  often  happened  that  sev- 
eral years  have  elapsed  between  the  adoption  of  an  opin- 
ion by  the  court  and  its  appearing  in  a  volume  of  re- 
ports. In  New  Hampshire,  in  1899,  no  official  reports 
of  the  decisions  of  the  Supreme  Court  had  appeared 
since  1891.  The  bar,  under  such  circumstances,  is 
compelled  to  move  in  the  dark. 

Unofficial  reporting  has  done  something  to  relieve  the 
situation  in  such  cases,  but  what  is  unofficial  is  unau- 
thoritative.  Judges  often  make  changes  in  opinions 
between  the  time  when  they  were  pronounced  and  that 
when  they  are  published  by  the  State.  In  such  a  case 
the  official  reports  are  conclusive  as  to  what  was  de- 
cided. 

It  does  not  seem  improbable  that  the  time  will  come 
when  counsel  will  be  restricted  by  positive  rule,  in  or- 
dinary cases,  as  to  the  number  of  reported  cases  which 
they  can  cite  in  argument.  Possibly  the  courts  may  go 
farther  and  forbid  any  statement  from  counsel  as  to  any 
cases,  except  those  of  their  own  state,  or  the  United 
States. 

Meanwhile  the  arguments  which  courts  of  ability  like 
best  to  hear  are  those  which  assume  their  knowledge  of 
the  principles  of  law,  without  stopping  to  recite  them, 
and  proceed  at  once  to  state  how  it  is  claimed  that  they 
apply  to  the  case  in  hand. 

A  closer  supervision  over  what  goes  into  the  reports 
will  also,  doubtless,  come  before  many  years.  It  is  right 


OBJECTIONS    TO    THE    PROFESSION       105 

that  in  all  cases  carried  to  the  courts  of  last  resort 
their  opinions  should  be  written  and  filed  in  the  clerk's 
office,  where  the  parties  to  the  cause  can  examine  them. 
This  helps  to  prevent  hasty  decisions,  for  which  no 
sound  reasons  can  be  assigned.  But  that  new  cases 
should  be  reported  for  the  public  eye,  which  simply  re- 
peat what  has  already  been  judicially  determined  in  the 
same  jurisdiction  or  re-assert  familiar  principles  of  the 
common  law,  is  an  intolerable  practice  for  a  country 
where  fifty  such  courts  exist. 


CHAPTER  IV 

THE    PERSONAL,    QUALITIES    REQUISITE    FOR    SUCCESS    IN 
THE    LEGAL    PROFESSION 

Ability.  Industry.  Steadiness.  Good  sense.  Knowledge  of 
human  nature.  Endurance.  Good  character.  Resolution.  Imag- 
ination. Oratorical  power  not  a  necessity.  Cannot  supply  want 
of  legal  knowledge.  Power  of  clear  statement.  Deliberation. 
Resting  case  on  settled  principles.  Burke's  practice  as  to  this. 
Self-confidence.  Ability  to  respond  to  sudden  call.  Close  study 
of  one's  cases.  Readiness  to  seize  opportunities.  Preparation  of 
argument  as  to  form. 

IN  no  profession  will  success  be  probable  as  to  one 
who  is  not  of  fair  ability  and  industrious  habits.  In 
addition  to  these,  the  practicing  lawyer  should  have 
steadiness  of  purpose,  good  sense,  good  judgment,  and 
good  knowledge  of  the  workings  of  the  human  mind. 
He  should  also  have  the  faculty  of  turning  quickly  from 
one  subject  to  another;  of  ordinarily  putting  aside  his 
business  at  night,  so  that  it  will  not  disturb  his  sleep; 
and  of  bearing  up  under  a  sudden  strain. 

James  A.  Bayard  of  Delaware  wrote  from  Europe, 
in  1814,  to  his  son,  who  had  just  entered  the  bar: 
"  Great  industry  and  perseverance  seldom  fail  to  make 
a  good  lawyer,  and  no  talents,  without  industry,  will 
produce  the  same  effect." 

A  good  character  is  a  man's  best  capital  in  all  call- 
ings. It  is  the  indispensable  capital  for  a  successful 

106 


QUALITIES    REQUISITE    FOR    SUCCESS       107 

lawyer.  Proof  of  it,  (such  as  can  be  had),  is  almost 
universally  required  from  every  applicant  for  admission 
to  the  bar.  Loss  of  it,  after  admission,  is  cause  for 
disbarment.  The  immense  trust  put  in  a  lawyer  by  his 
clients  can  rest  on  no  other  foundation  than  his  integ- 
rity. A  man  who,  after  obtaining  a  judgment  for  an- 
other, of  whatever  amount,  can  collect  and  discharge  it, 
can  find  little  employment  in  the  courts,  unless  he  is  and 
is  known  to  be  honest.  Without  that,  indeed,  he  cannot 
really  know  what  law  and  equity  are,  and  what  they  de- 
mand. Professor  Theodore  W.  Dwight  used  to  say  to 
his  classes  in  Equity  Jurisprudence :  "  No  one  can  be 
a  good  equity  lawyer  unless  he  is  himself  a  good  man." 

Another  necessary  quality  is  resolution.  When  a 
lawyer  is  once  enlisted  in  a  cause,  he  must  be  ready,  at 
all  costs  to  himself,  to  do  his  best.  Sheil,  the  Irish  bar- 
rister, once  said,  with  much  truth,  that  without  hardi- 
hood of  purpose  and  contempt  of  consequences,  nothing 
great  in  thought  or  action  can  be  accomplished  at  the 
bar. 

A  lawyer  will  be  much  assisted  in  his  practice  if  he 
be  gifted  with  strong  imaginative  faculties.  Whether 
in  court  or  in  his  office  he  is  always  being  called  upon 
to  forecast  the  future.  His  client  wishes  him  to  draw  a 
contract  for  a  certain  purpose  or  in  a  certain  way. 
How  will  the  other  party  to  the  bargain  understand, 
and  have  a  right  to  understand,  the  provisions  ?  He  is 
about  to  argue  a  cause.  What  are  the  claims  that  may 
be  advanced  by  the  other  party? 

A  Japanese  officer  once  said  that  a  private,  soldier 


108   THE  YOUNG  MAN  AND  THE  LAW 

who  had  powers  of  initiative  and  imagination  was  worth- 
less. His  business  was  to  obey  orders,  without  fore- 
casting their  consequences.  The  position  of  the  lawyer 
is  diametrically  the  reverse.  He  obeys  no  man's  orders. 
His  client's  directions  do  not  bind  him  as  to  matters 
where  the  law  gives  him  discretionary  powers.  His  bus- 
iness is  to  anticipate  the  course  of  future  events ;  to  pre- 
dict how  a  cause  will  be,  because  it  ought  to  be,  decided ; 
to  initiate  theories  of  prosecution  or  defense ;  and  in  all 
these  things  the  imagination  is  often  his  safest  guide. 

To  command  the  attention  of  a  popular  assembly  one 
must  have  either  strength  of  mind  or  strength  of  manner. 
To  command  that  of  a  judge,  or  even  of  a  jury,  neither 
is  absolutely  required.  It  is  not  at  all  necessary  that 
a  trial  lawyer  should  have  what  is  commonly  known  as 
oratorical  power,  though  it  will  be  of  great  advantage 
to  him  to  possess  it. 

Schiller  described  oratory  as  the  art  which  carries  on 
a  business  of  the  intellect  as  a  free  play  of  the  imagina- 
tion. The  main  point  is  to  do  well  this  business  of  the 
intellect.  It  may  be  conducted  by  mathematical  and 
logical  methods,  though  in  such  case  the  labor  of  the 
orator  will  have  been  greater,  and  the  satisfaction  of 
his  auditors  less.  It  may  be  accomplished  by  the  flash- 
lights of  the  imagination,  but  they  should  not  be  turned 
on  until  the  intellect  has  done  its  work,  and  a  work  that 
needs  only  to  be  seen  to  be  appreciated. 

No  art  will  long  conceal  inferiority  at  the  bar,  if  it 
proceeds  from  want  of  legal  knowledge.  Lord  Erskine 
wrote  to  an  American  correspondent,  '*  Remember  that 


QUALITIES   REQUISITE    FOE    SUCCESS       109 

no  man  can  be  a  great  advocate,  who  is  no  lawyer.  The 
thing  is  impossible."  * 

The  important  subjects  of  controversy  likely  to  arise 
in  any  particular  suit,  will  seldom  be  numerous.  Their 
character  can  be  foreseen  by  a  sharp-sighted  man,  and 
their  relations  to  each  other  and  to  the  law  can  gener- 
ally be  studied  with  care  before  the  trial.  The  lawyers 
engaged  in  the  cause  can,  in  most  cases,  acquire  a  knowl- 
edge of  these  relations  superior  to  that  possessed  by  any 
other  person  who  is  competent  to  handle  them. 

Occupying  this  position,  they  have  the  best  oppor- 
tunity to  show  what  they  can  accomplish,  whether  in 
reaching  sound  conclusions  or  in  leading  others  to  ac- 
cept their  conclusions  as  being  sound.  They  argue 
causes  from  this  high  vantage  ground.  The  judge  and 
jury  first  learn  of  the  nature  of  the  suit  from  their  lips. 
Much  depends  on  first  impressions.  The  most  success- 
ful advocate  is  he  who  can  make  a  favorable  impression 
by  his  opening  statement  at  the  bar,  and  has  given  the 
time  and  thought  necessary  to  present  the  case  fairly 
and  fully  in  the  way  in  which  he  wants  to  have  it  strike 
those  whom  he  addresses. 

This  may  be  done  by  some  men,  speaking  in  a  con- 
versational tone  and  with  a  manner  absolutely  devoid 
of  action,  far  more  effectively  than  by  others  who  are 
born  orators,  but  have  been  less  careful  in  their  pre- 
liminary study  of  the  facts.  It  is  also  true  that  what 
is  in  any  man's  power,  namely  to  speak  slowly,  is  even 

i  Jeaffreson,  A  Book  about  Lawyers,  p.  363. 


110   THE  YOUNG  MAN  AND  THE  LAW 

more  important  than  to  speak  forcibly.  One  may  be 
forcible,  but  speak  so  fast  that  his  train  of  thought  can- 
not easily  be  followed  without  so  much  effort  that  either 
the  attempt  will  be  abandoned,  or  the  impressions  made 
will  efface  each  other  by  the  rapidity  of  their  succession. 

A  distinguished  Rhode  Island  lawyer  had  this  habit 
of  speaking  too  rapidly.  A  client  once  said,  after  lis- 
tening to  his  argument,  that  it  was  excellent  and  con- 
vincing but,  he  added,  "  from  what  I  know  of  judges,  if 
he  had  kept  his  words  a  little  farther  apart,  I  think 
they  would  have  had  a  better  chance  to  settle  down 
among  the  ideas  of  the  Court."  * 

To  speak  naturally  with  a  grace  and  spirit  that  are 
sure  to  attract  attention  is  a  great  gift  but,  after  all,  it 
can  avail  little  towards  winning  a  favorable  decision  of 
a  case,  even  before  a  jury,  except  in  prosecutions  for 
certain  crimes.  A  Maitre  Labori  can  occasionally  save 
a  murderess  from  punishment,  but  such  successes  are 
proof  rather  of  the  weakness  of  the  human  mind,  than 
of  anything  that  deserves  the  name  of  legal  skill. 

A  lawyer  should  be  capable  of  stating  his  case  so  that 
the  court  and  jury  can  understand  the  facts,  as  he 
claims  them  to  be,  and  the  law  bearing  upon  them  as  he 
claims  that  to  be.  He  will  argue  most  effectively  when 
he  makes  this  statement  the  most  plain  and  clear.  But 
it  must  be  plain  to  those  to  whom  it  is  addressed.  This 
requires  a  considerable  knowledge  of  human  nature.  A 
man  does  not  talk  to  a  jury  as  he  would  to  a  learned 

i  Abraham  Payne's  Reminiscences  of  the  Rhode  Island  Bar, 
Providence,  1885,  p.  253. 


QUALITIES   REQUISITE    FOE    SUCCESS       HI 

academy  of  scholars.  He  does  not  talk  to  an  inex- 
perienced or  half  educated  judge,  as  he  would  to  an  able 
and  learned  one  who  has  been  twenty  years  upon  the 
bench.  He  would  weary  one  with  what  might  be  indis- 
pensable for  the  information  of  the  other. 

Tne  more  a  case  can  be  rested  on  settled  principles  of 
law,  the  more  impressive  will  be  the  argument. 

Edmund  Burke  was  a  great  logician  and  reasoner. 
Without  the  aid  of  oratory  in  delivery,  his  arguments 
had  great  weight  with  those  who  heard,  and  greater  with 
those  who  read  them.  They  bore  close  study.  Cole- 
ridge, in  his  Biographia  Literaria,  says  of  him  that  his 
great  distinction  lies  in  trying  everything  at  the  bar  of 
principle.  His  views,  it  is  added,  at  the  commencement 
of  the  American  Revolution  were  guided  by  the  same 
principles  and  the  same  deductions  which  he  afterwards 
applied  to  the  causes  of  the  French  Revolution,  but  the 
practical  inferences  which  he  drew  from  them,  both 
sound,  were  almost  opposite.  The  reason  was  that 
Burke  had,  and  had  sedulously  cultivated,  the  faculty 
"  of  seeing  all  things,  actions,  and  events  in  relation  to 
the  laws  that  determine  their  existence  and  circum- 
scribe their  possibility."  1 

Self-confidence  is  another  possession  of  particular 
value  for  a  lawyer.  It  may,  of  course,  be  nothing  but 
ill-disguised  self-conceit;  but,  if  it  be  not  thus  mis- 
named, it  is  a  desirable  quality  for  every  man  who  would 

l  Workt  of  Coleridge,  New  York,  1856,  Vol.  Ill,  p.  288. 


THE  YOUNG  MAN  AND  THE  LAW 

win  success  in  any  profession,  and  to  a  lawyer,  where 
founded  on  a  just  appreciation  of  one's  powers,  will  be 
a  great  help  in  assuming  on  occasion  a  burden  which  is 
to  be  suddenly  taken  up  or  rejected. 

A  young  lawyer  should  not  shun  responsibility.  If 
an  important  or  doubtful  case  is  put  in  his  hands,  he 
should  not  ask  his  client,  when  it  is  coming  on  for  trial, 
to  retain  older  counsel  to  assist  him.  To  make  such  a 
request  is  a  confession  either  of  incompetency  or  of 
want  of  knowledge  of  his  own  powers. 

The  practice  of  most  lawyers  is  uneven.  It  differs 
from  day  to  day  in  kind,  and  from  year  to  year  in  vol- 
ume. They  must  be  prepared  to  deal  intelligently  with 
business  when  it  comes  and  as  it  comes.  If  a  critical 
case  be  reached  suddenly  and  unexpectedly  for  trial, 
the  trial  lawyer  must  be  ready  to  arrange  and  produce 
the  testimony  in  proper  shape  and  order,  and  to  bring 
forward  the  best  arguments  that  he  can  frame.  He 
must  not  be  found  unprepared  for  anything  that  he  has 
undertaken  to  do.  He  must  be  ready,  in  the  intervals 
of  the  trial,  though  at  the  cost  of  giving  up  a  meal  or 
a  night's  sleep,  to  complete  and  round  out  whatever 
preparation  he  has  made  before. 

The  trial-lawyer's  life  is  one  of  more  strain  than  the 
office-lawyer's.  Its  successes  are  more  brilliant,  but 
they  are  bought  with  greater  and  more  concentrated  ex- 
ertion of  all  the  forces  of  mind  and  body.  No  man 
could  try  cases  to  the  jury  every  day  in  the  year.  The 
tension  of  effort,  in  pushing  through  one  and  then 
instantly  turning  to  another,  week  after  week  and 


QUALITIES   BEQTJISITE    FOE    SUCCESS       H3 

month  after  month,  would  be  too  great,  however  iron 
his  constitution  might  be. 

No  lawyer  will  be  able  to  acquire  or  handle  a  large 
practice,  unless  he  gives  it  close  attention.  He  must 
work  hard  for  what  he  gets.  Heaven  always  sells  us 
the  good  things  it  bestows  on  us,  says  the  French 
proverb.1  The  lawyer  pays  something  for  success. 

One  who  would  succeed  as  a  lawyer  must  stand  ready 
to  seize  opportunities  for  rendering  legal  service.  It  is 
not  enough  to  have  the  qualifications.  He  must  be  able 
to  show  that  he  has  them.  Emerson  said :  "  Let  any 
man  learn  to  do  some  one  thing  better  than  the  average 
man  is  doing  it  and,  though  he  build  his  hut  in  the  heart 
of  a  forest,  the  people  of  the  world  will  make  a  pathway 
to  his  door."  This  may  be  true  of  a  hand-worker. 
His  products  advertise  themselves.  "  Good  wine  needs 
no  bush."  It  is  seldom  true  of  the  head-worker ;  — 
never,  until  he  has  shown  the  public  what  his  head  can 
do  for  him,  and  for  them.  The  lawyer  cannot  make 
such  an  exhibition  of  his  powers,  unless  some  occasion 
gives  him  a  chance,  and  he  is  found  ready  to  use  it. 

A  most  valuable  habit  of  mind  for  a  trial  lawyer  is 
quickness  in  mental  action.  He  will  sometimes  have  a 
sudden  opportunity  to  make  a  point  which  must  be  im- 
proved the  next  moment,  or  never. 

Lord  Chief  Justice  Coleridge,  when  a  young  barris- 
ter, was  defending  one  charged  with  murder  before  a 

i " Le  del  nous  vend  toujours  les  biens  qu'il  nous  prodiyue." 


THE  YOUNG  MAN  AND  THE  LAW 

jury.  The  court  sat  in  the  evening,  and  as  he  was  mak- 
ing his  final  argument,  it  so  happened  that  the  lights 
went  out.  Very  soon  the  mishap  was  remedied.  "  Gen- 
tlemen," said  Coleridge,  in  resuming  his  speech,  "  you 
have  seen  how  suddenly  the  light  went  out  —  how 
quickly  it  has  been  restored.  It  is  in  your  power  to 
extinguish  the  prisoner's  life  —  but  remember,  if  you 
do  so,  it  cannot  under  any  circumstance  be  replaced." 

There  are  few  Coleridges  and,  were  there  more  of 
them,  few  chances  to  make  possible  so  striking  an  ap- 
peal as  this.  But  there  are  often  stages  in  a  legal  argu- 
ment, which  can  be  anticipated,  that  give  room  for  the 
use  of  graphic  illustration  or  epigrammatic  phrase. 
Successful  speakers  prepare  for  them  well  in  advance. 

Curran  had  the  reputation  of  striking  off  happy 
phrases  in  his  speeches,  in  the  heat  of  the  moment.  A 
friend  asked  him  how  this  was. 

"  My  dear  fellow,"  said  he,  "  the  day  of  inspiration  is 
gone  by.  Everything  I  ever  said,  which  was  worth  remem- 
bering, my  de  bene  esses,  my  white  horses,  as  I  call  them, 
were  all  carefully  prepared."  2 

1  Crispe,  Reminigcences  of  a  K.  C.,  p.  82. 

2  Phillips,  Curran  and  H\»  Contemporaries,  p.  383. 


CHAPTER  V 

THE   EDUCATION    REQUISITE   FOE    SUCCESS  IN    THE    LEGAL 
PROFESSION 

Three  years'  study  needed.  The  terminology  and  salient  points 
to  be  learned,  first.  Institutional  instruction.  The  fundamental 
principles  few,  and  simple.  Studying  in  an  office.  Improvements 
in  American  Law  Schools.  Law  Reports.  Case-books.  Judicial 
opinions  with  us  the  conclusive  proof  of  what  is  law.  Instruction 
in  law,  both  as  a  science  and  as  an  art.  Its  philosophical  founda- 
tions. Hegel's  view.  Study  of  legal  history.  Of  great  historical 
judgments.  Law,  a  great  anthropological  document.  The  differ- 
ent methods  of  legal  instruction.  Lectures.  Oral  discussions  en- 
couraged. Dividing  large  classes.  Case-books  must  cover  less 
ground  than  text-books.  Acquiring  a  sense  of  legal  proportion. 
Study  of  the  law  of  nature  and  moral  philosophy.  Of  principles 
first,  and  authority  afterwards.  The  increase  of  legal  subjects 
postpones  for  most  the  study  of  comparative  law.  Law  a  pro- 
gressive science.  Sociology  and  Law.  Pragmatic  philosophy. 
Logic  in  law.  Legal  education  useless  for  some.  It  requires 
some  native  gifts.  Good  students  in  other  sciences,  generally 
good  in  law.  Continuing  legal  studies  at  the  bar. 

THE  American  lawyer  needs  two  courses  of  education : 
one  to  fit  him  to  study  what  law  is  and  how  it  should  be 
applied,  and  one  to  accompany  and  direct  him  in  doing 
what  he  has  been  thus  fitted  for.  His  first  course  will 
occupy  the  whole  period  of  his  youth :  the  second  should 
occupy  the  whole  remainder  of  his  life.  Three  years  of 
his  early  manhood  should  be  devoted  to  legal  study  from 

the  standpoint  of  one  who  hopes  to  be  a  lawyer ;  the  rest 

115 


116   THE  YOUNG  MAN  AND  THE  LAW 

of  his  time  on  earth  to  legal  study  from  the  standpoint 
of  one  who  is  a  lawyer. 

The  great  need  of  the  law  student,  at  the  beginning, 
is  to  get  a  general  view  of  the  salient  points  in  the  law 
of  the  country  in  which  he  expects  to  practice.  This, 
of  course,  requires  a  knowledge  of  the  terminology  of 
legal  science.  A  principle  cannot  be  understood  until 
it  is  stated  in  words  of  which,  as  thus  applied,  the 
student  understands  the  proper  meaning. 

These  points,  and  terms,  and  principles  are  best 
learned  from  short  institutional  treatises  or  institu- 
tional lectures.  Of  books  of  this  nature,  Lord  Bacon, 
himself  the  author  of  one  of  the  earlier  ones,  said 
that  they  must  be  clear  and  plain,  "  not  omitting  some 
subjects  and  dwelling  too  long  on  others,  but  touching 
upon  each  briefly,  so  that  to  a  student  afterwards  com- 
ing to  read  the  whole  body  of  the  law  nothing  may  ap- 
pear wholly  new,  but  as  that  of  which  some  little  notion 
had  been  previously  imparted  ('  levi  aliqua  notione 
prceceptum  ')."  * 

In  some  of  the  American  States  there  are  official  codi- 
fications of  municipal  law  as  to  most  matters  of  the  first 
importance  in  determining  civil  rights.  In  such  States, 
those  should,  of  course,  be  read  at  some  stage  in  legal 
education,  but  as  they  greatly  resemble  each  other  this 
can  generally  be  better  deferred  till  shortly  before  ap- 
plying for  admission  to  the  bar. 

Thus  far  the  beginnings  of  legal  education  involve  no 

i  Bacon's  Works,  1803,  Vol.  VII,  p.  458;  Aphorism  Ixxxi. 


EDUCATION    REQUISITE    FOE    SUCCESS       117 

special  difficulty.  "  No  conception  held  in  common  by 
a  large  number  of  men  such  as  the  members  of  a  State 
or  great  community  can  be  very  complex  in  its  nature 
or  difficult  of  comprehension.  This  may  be  taken  for 
granted  as  one  of  the  laws  of  thought.  Consequently 
the  fundamental  notions  out  of  which  the  rules  of  law 
are  derived  must  be  of  this  simple  character,  since  it  is 
in  the  general  acceptance  and  uniformity  of  these  no- 
tions that  the  common  law  exists  as  such."  An  advo- 
cate who  has  been  able  to  show  to  the  satisfaction  of  the 
court,  that  they  support  the  claims  which  he  presents, 
has  won  his  case.  He  needs  cite  no  authorities.  One 
of  the  leaders  of  the  New  York  bar  in  his  day,  (Francis 
N.  Bangs),  once  said  that  "  no  man  was  fit  to  practice 
law,  that  was  not  able  to  practice  it  without  law 
books."  2 

The  early  American  lawyers  had  few  of  them.  They 
had  studied  their  profession  in  lawyers'  offices,  and  by 
attendance  in  court.  In  offices  of  capable  men,  who 
took  a  real  interest  in  their  pupils,  this  was  in  many 
respects  no  bad  way.  They  received  a  hundred  or  a 
hundred  and  fifty  dollars  a  year  from  each,  and  gave 
value  for  it.3  Business  was  not  so  pressing  then  as 
now.  In  the  country,  particularly,  time  often  hung 
heavy  on  a  lawyer's  hands,  and  could  be  well  devoted  to 
actual  instruction  of  his  pupils,  or  examinations  to  see 
if  they  had  read  the  books  which  he  had  recommended. 

1  Reports  of  the  American  Bar  Association,  Vol.  XV,  p.  342. 

2  Strong,  Landmarks  of  a  Lawyer's  Life  Time,  p.  273. 
8  A.  M.  Hamilton,  Life  of  A  lexander  Hamilton,  p.  159. 


118   THE  YOUNG  MAN  AND  THE  LAW 

Since  the  Civil  War  the  proportion  of  students  at- 
tending law  schools  has  steadily  increased.  Fewer  men 
of  ability  have  found  leisure  or  disposition  to  give  in- 
struction to  pupils  putting  themselves  under  their  care. 
Business  methods  have  largely  changed.  Students 
have,  in  some  measure,  been  crowded  out  of  lawyers' 
offices  by  the  stenographer  and  the  typewriter.  The 
law  schools,  on  the  other  hand,  have  greatly  increased 
in  number,  and  improved  in  their  manner  of  instruction. 
There  can  be  no  serious  question  that  now  they  afford, 
in  most  cases,  the  best  available  facilities  for  giving  a 
good  legal  education. 

It  is  universally  conceded  that  its  main  aim  should  be 
to  cultivate  a  familiarity  with  the  more  important  prin- 
ciples and  rules  of  that  system  of  law  under  which  the 
student  intends  to  practice,  and  to  promote  his  ability 
to  discuss  their  proper  bearing  on  any  states  of  fact  to 
which  he  may  seek  to  apply  them. 

In  the  United  States,  for  the  official  declaration  of 
most  of  these  rules,  one  must  look  to  the  published  opin- 
ions of  the  higher  courts  as  the  original  source  of 
authority.  But  these  courts  have  no  commission  from 
the  State  to  declare  what  is  a  rule  of  law  except  in  the 
determination  of  particular  controversies,  and  then  only 
so  far  as  may  be  necessary  to  uphold  such  judgment  as 
they  may  render.  They  do  not  write  law-books.  They 
do  not  seek  to  arrange  the  law  in  an  orderly  and  sys- 
tematic form. 

Private  individuals  do  this.  They  take  the  best  defi- 
nitions of  legal  rules  which  they  can  find  in  the  reports 


EDUCATION    REQUISITE    FOE    SUCCESS       119 

of  judicial  decisions,  improving  them  if  they  can.  They 
separate  them  into  classes,  according  to  their  special 
character.  They  combine  them  with  statements  of  law 
derived  from  other  sources,  and  suggestions  of  their 
own,  and  so  produce  a  book  on  some  particular  topic,  or 
perhaps  on  the  elementary  rules  and  processes  of  the 
law  on  all  subjects.  Such  suggestions  will  be  made  in 
the  interest  of  comprehensiveness  of  treatment.  They 
will  be  made  in  view  of  what  seems  fair  and  just  to  the 
writer,  who  will  be  always  impartial,  because  having  no 
personal  and  present  interest  in  the  question  to  which 
they  relate. 

But  systems  of  law  are  constructed  out  of  particular 
rules  as  well  as  general  principles.  There  is  a  juristic 
encyclopedia,  as  the  Germans  phrase  it,  that  must  be 
taught  to  whoever  would  be  a  true  lawyer.  He  must 
master  it  as  the  beginning  and  foundation  of  his  pro- 
fessional education.1 

To  aid  him  in  his  further  studies  we  have  in  the 
United  States  what  has  been  found  in  equal  measure  in 
no  other  nation.  Only  in  the  United  States  do  judicial 
opinions  express  the  final  word  of  the  sovereign  power. 
The  courts  of  Great  Britain  must  bow  to  the  will  of 
Parliament.  The  will  of  the  Congress  of  the  United 
States  must  bow  to  the  courts  of  the  United  States. 
The  will  of  the  legislature  of  each  State  must  bow  to  the 

i  See  two  articles  by  the  author  on  The  Study  of  Elementary 
Law  the  Proper  Beginning  of  a  Legal  Education,  Yale  Law  Jour- 
nal, Vol.  XIII,  p.  1 ;  and  on  Education  for  the  Bar  in  the  United 
Stafet,  American  Political  Science  Review,  Vol.  IX,  p.  437. 


120      THE    YOUNG    MAN    AND    THE    LAW 

will  of  its  highest  court.  Here,  therefore,  the  opinions 
of  the  courts  are,  in  Great  Britain  they  are  not,  the  ulti- 
mate source,  in  effect,  of  written  authority. 

On  the  other  hand,  the  unity  of  the  judicial  system 
of  Great  Britain,  with  its  one  final  court  of  appeals 
for  all  causes  arising  in  the  kingdom  proper,  and  an- 
other final  court  of  appeals  for  all  causes  arising  in  her 
dominions  beyond  the  sea,  coupled  with  the  omnipotence 
of  Parliament,  avoids  that  conflict  of  authority  which  is 
the  despair  of  American  jurisprudence. 

In  our  American  law  schools,  therefore,  we  have  al- 
ways made  great  use  of  the  recorded  opinions  of  our 
higher  courts,  in  which  the  reasons  for  their  decisions 
are  stated.  Since  1870  this  practice  has  greatly  ex- 
tended. There  are  now  almost  no  topics  of  legal  in- 
struction which  have  not  been  made  the  subject  of  a 
volume  consisting  of  extracts  from  such  opinions, 
arranged  in  convenient  order,  and  introduced  or  inter- 
spersed with  explanations,  largely  of  an  historical  char- 
acter. Such  books,  called  "  case-books,"  are  useful  in 
their  place,  and  in  many  law  schools  have  wholly  or 
mainly  displaced  text-books  on  the  same  subjects  which 
were  formerly  employed. 

As  law  is  both  a  science  and  an  art,  so  legal  educa- 
tion must  aim  to  give  some  knowledge  of  it  in  each  of 
these  forms.  There  must  be  scientific  instruction  for 
all,  but  there  will  be  those  to  whom  acquaintance  with 
the  law  as  a  science  will  be  the  more  valuable,  and  others 
to  whom  acquaintance  with  law  as  an  art  will  be  the 
more  valuable.  Professor  William  C.  Robinson  made  a 


EDUCATION    REQUISITE    FOR    SUCCESS 

clear,  though  in  some  respects  overstrained,  differentia- 
tion between  these  two  kinds  of  instruction,  and  the  class 
for  which  each  was  designed,  in  these  words : 

"  It  is  one  purpose  of  legal  education  to  confer  a  knowl- 
edge of  the  science  of  the  law,  to  lead  the  student  to  the 
contemplation  of  fundamental  principles,  to  teach  him  how 
to  draw  from  them  impregnable  conclusions,  to  exhibit  prin- 
ciples and  conclusions  to  him  in  their  relations  to  other 
necessary  truths,  to  conduct  him  down  the  historic  path  of 
social  and  legal  evolution  until  he  knows  the  present  rules 
of  law  in  their  causes  and  thus  perceives,  absorbs  and 
assimilates  the  reason  of  the  law.  It  is  another  and  quite 
a  distinct  purpose  of  legal  education  to  train  apprentices 
in  the  art  of  law,  to  instruct  them  in  the  rules  which  govern 
social  conduct,  in  the  specific  methods  prescribed  by  law 
for  the  execution  of  voluntary  acts,  and  in  the  modes  by 
which  redress  for  injuries  is  sought  and  gained  in  civil 
and  criminal  tribunals.  That  some  students  may  be  able 
through  their  superior  powers  or  larger  opportunities  to 
avail  themselves  of  both  these  forms  of  legal  education,  and 
become  at  once  practitioners  and  scientists,  does  not  remove 
the  radical  difference  between  them,  nor  justify  the  con- 
tinuance of  those  educational  systems  which  afford  only  a 
smattering  of  commingled  art  and  science,  and  introduce 
their  victim  to  professional  responsibilities  and  honors  when 
competent  neither  to  verify  nor  to  practice  law."  1 

This  would  appear  to  deny  to  the  ordinary  student 
of  law  as  a  science  any  preparation  for  its  practice  in 
court.  A  system  of  legal  education  may  be  so  con- 
ducted as  to  commingle  art  and  science,  as  each  the  best 
interpreter  of  the  other,  and  in  so  doing  not  content 

i  Robinson,  A  Study  of  Legal  Education,  Boston,  1895,  p.  12. 


122       THE    YOUNG    MAN    AND    THE    LAW 

itself  with  giving  but  a  smattering  of  either.  Nor  are 
the  students  few  who  can  profit  by  such  instruction. 
On  the  contrary,  there  are  few  who  cannot. 

Pursued  in  this  manner,  a  legal  education  naturally 
leads  to  the  highest  walks  of  human  thought.  It  in- 
vites its  disciples  to  take  a  wide  survey  of  men  and  man- 
ners. They  find  an  inspiration  in  such  suggestions  as 
Hegel's,  who  would  trace  the  evolution  of  human  reason 
from  logic  to  the  philosophy  of  nature;  from  the  phi- 
losophy of  nature  to  the  philosophy  of  the  subjective 
spirit,  that  is  psychology;  from  the  psychology  of  the 
subjective  spirit  to  the  psychology  of  the  objective 
spirit,  that  is  to  the  philosophy  of  law  and  of  history; 
and  finally  from  the  philosophy  of  law  and  history  to 
the  philosophy  of  the  absolute  spirit,  that  is  to  the 
philosophy  of  art,  religion,  and  philosophy  itself. 
Then,  he  declares,  attaining  this  level,  the  spirit  of  man 
rises  to  consciousness  of  itself  and  of  the  origin  and 
essence  of  the  universe.  There  is  too  much,  no  doubt, 
of  a  transcendental  tone  to  this,  but  it  is  certain  that 
the  paths  of  law  and  history,  from  whatever  point  of 
view  they  are  studied,  often  intertwine.  Law  is  in- 
deed, in  its  essential  nature,  a  silent  historian,  infallible 
in  judgment,  unequaled  in  accuracy,  always  at  work  to 
perpetuate  the  memory  of  every  people  that  deserves  a 
place  in  the  records  of  the  world.  Whoever  seeks  to 
learn  law  is  necessarily  a  student  of  history,  and  he  will 
soon  find  that  law  is  the  best  recorder  of  its  development 
on  the  lines  of  social  justice  and  constitutional  right. 

An  ancient  piece  of  legislation  often  has  a  high  value, 


EDUCATION    REQUISITE    FOR    SUCCESS       123 

as  an  historical  document,  in  showing  what  rights  the 
people  where  it  was  adopted  deemed  most  in  need  of  pro- 
tection by  or  against  the  State,  and  also  most  worthy  of 
it.  It  will  show,  further,  on  what  safeguards  they 
deemed  it  reasonable  to  rely.  If  they  should  be  under 
the  rule  of  a  king,  the  same  thing  would  be  true. 
Neither  statute  nor  royal  decree  will  endure  unless  it 
be  one  to  which  its  framer  thought  with  reason  that  the 
people  would  be  ready  to  conform. 

The  modern  historian  does  not  forget  this,  nor  did 
it  wholly  escape  the  attention  of  the  ancient  world. 
Sempronius  Asellio,  himself  a  soldier,  said,  in  a  day 
when  military  glory  counted  for  the  most,  that  to  write 
of  wars,  and  triumphs,  and  their  dates,  to  dwell  upon 
campaigns  and  their  events,  and  not  inquire  what  de- 
crees meanwhile  came  from  the  senate,  what  statutes 
from  the  people,  nor  from  what  motives  these  wars  were 
waged,  was  to  tell  stories  for  children,  not  to  write  his- 
tory.1 

There  have  been  judgments  in  and  also  out  of  Eng- 
land and  the  United  States  which  were  the  beginning  of 
new  epochs.  Such  were  those  in  Hampden's  ship- 
money  case  (1638)  ;  the  case  of  the  Seven  Bishops 
(1688)  ;  Winthrop  v.  Lechmere  in  New  England 
(1727)  ;  the  prosecutions  against  John  Wilkes  (1764)  ; 
Miller  Arnold's  Case,  in  Prussia  (1779)  2;  the  Trial  of 
Queen  Caroline  (1820)  ;  Chisholm  v.  Georgia  (1792)  ; 

i  Aulus  OelUus,  Lib.  V,  Cap.  18. 

aCarlyle,  Life  of  Frederick  the  Great,  London,  1858-1865,  Vol. 
X,  Ch.  7. 


THE  YOUNG  MAN  AND  THE  LAW 

Dartmouth  College  v.  Woodward  (1819)  ;  the  Dred 
Scott  case  (1857)  ;  the  Milligan  Case  (1866)  ;  the 
Slaughter  House  cases  (1872)  ;  Munn  v.  Illinois 
(1876),  and  the  Dreyfus  court  martial  in  France,  of 
1899.  Cases  like  these  have  served  to  define  the  real 
limits  of  governmental  order.  They  afford  new  station 
points.  So  much  has  been  settled,  to  reason  from.  "  I 
am  convinced,"  once  said  Cavour,  "  that  Order  is  neces- 
sary for  the  development  of  society  and  that  of  all  the 
guaranties  of  order,  a  legitimate  power  which  has  its 
roots  in  the  history  of  the  country  is  the  best." 

To  become  a  well-read  lawyer  requires  not  only  a 
study  of  history,  but  a  philosophical  study  of  it. 
There  is  an  attraction  in  this  to  any  thoughtful  man, 
though  he  may  never  expect  to  have  occasion  to  make 
any  money-getting  use  of  his  investigation.  As  Mr. 
Justice  Holmes  of  the  Supreme  Court  of  the  United 
States  has  said  : 

"  It  is  perfectly  proper  to  regard  and  study  the  law 
simply  as  a  great  anthropological  document.  It  is  proper 
to  resort  to  it  to  discover  what  ideals  of  society  "have  been 
strong  enough  to  reach  that  final  form  of  expression,  or 
what  have  been  the  changes  in  dominant  ideals  from  century 
to  century.  It  is  proper  to  study  it  as  an  exercise  in  the 
morphology  and  transformation  of  human  ideas.  The 
study  pursued  for  such  ends  becomes  science  in  the  strictest 
sense.  Who  could  fail  to  be  interested  in  the  transition 
through  the  priest's  test  of  truth,  the  miracle  of  the  ordeal, 
and  the  soldier's,  the  battle  of  the  duel,  to  the  democratic 
verdict  of  the  jury!  Perhaps  I  might  add,  in  view  of  the 
great  increase  of  jury-waived  cases,  a  later  transition  yet  — - 


EDUCATION    REQUISITE    FOR    SUCCESS       125 

to  the  commercial  and  rational  test  of  the  judgment  of  a 
man  trained  to  decide.  .  .  .  History  is  the  means  by  which 
we  measure  the  power  which  the  past  has  had  to  govern  the 
present,  in  spite  of  ourselves,  so  to  speak,  by  imposing  tra- 
ditions which  no  longer  meet  their  original  end.  History 
sets  us  free  and  enables  us  to  make  up  our  minds  dis- 
passionately whether  the  survival  which  we  are  enforcing 
answers  any  new  purpose  when  it  has  ceased  to  answer  the 
old."  1 

In  the  Harleian  Miscellany  2  there  is  preserved  a  let- 
ter of  advice  from  William  Cecil,  Earl  of  Salisbury,  to 
a  newly  appointed  Secretary  of  State,  as  to  the  dis- 
charge of  his  office,  in  which  occurs  this  passage : 

"  Touching  the  Lawyers  of  the  Country,  esteem  them  of 
learning,  so  they  lack  not  too  much  Honesty,  but  in  no 
wise  seem  to  favor  these  Demy-Lawyers,  except  you  see 
Perfection  of  Honesty,  for  in  all  Countries  they  have  least 
Skill  and  do  most  Harm." 

The  demi-lawyer  will  always  be  found  wherever  there 
is  a  numerous  bar.  He  is  not  often  the  "  Perfection  of 
Honesty."  He  has  not  honestly  studied  his  profession. 
He  has  got  into  it  for  what  it  is  worth  in  the  goods  of 
this  earth.  Philosophical  questions  will  not  trouble 
him,  nor  would  their  study  be  of  benefit  to  him.  But 
for  such  this  volume  is  not  written. 

There  are  various  methods  of  legal  instruction.  One 
is  planned  to  lay  the  greatest  stress  on  a  study,  at  least 

1  Harvard  Law  Review,  Vol.  XII,  pp.  444,  445,  452. 

2  Vol.  II,  p.  265. 


126       THE    YOUNG    MAN    AND    THE    LAW 

at  the  outset,  of  such  text-books  as  have  been  described, 
supplemented  by  lectures.  In  another,  use  is  made  of 
them  only  at  the  outset,  or  not  at  all ;  reliance  being  had 
mainly  on  case-books,  supplemented  by  oral  explana- 
tions. Other  methods  of  instructions  are  combinations 
of  those  which  have  been  delineated;  embracing  some- 
thing of  the  distinctive  features  of  each. 

Lectures  are  less  used  in  the  United  States  than 
formerly  as  a  method  of  instruction.  They  furnished 
the  easiest  way  for  a  teacher  of  law  to  teach,  or  to  ap- 
pear to  teach.  But  the  easiest  way  either  of  teaching 
or  learning  is  seldom  the  best.  It  takes  effort  to  pro- 
duce result.  Law  is  not  drunk  in  as  our  native  lan- 
guage is,  or  even  as  our  native  institutions  are.  Part 
of  it  is  derived  from  days  and  lands  of  very  different  in- 
stitutions, and  very  different  ideas.  Its  rules  often 
seem  harsh  and  wrong.  They  sometimes  are.  They  al- 
ways are  in  part,  let  us  believe;  else  were  our  legisla- 
tures busy  to  little  purpose. 

To  learn  law  one  must  study  law,  and  the  lecture- 
room  is  but  an  indifferent  place  to  study  in.  One  can 
get  suggestions,  facts,  rules,  principles,  inspirations 
there,  but  he  must  go  elsewhere  for  reflection,  compari- 
son, digestion,  consultation. 

Nothing  falls  so  dead  on  the  ear  as  a  lecture  on  an 
abstract  subject,  which  is  written  out  in  full,  and  read, 
word  by  word,  to  the  audience.  Having  ears  they  will 
hear  not.  Is  not  the  same  thing,  they  may  well  ask,  to 
be  read  in  printed  books,  to  better  purpose,  in  half  the 
time?  A  law  lecture,  to  be  worth  anything  to  ordinary 


EDUCATION    REQUISITE    FOR    SUCCESS       127 

men,  must  be  delivered  in  more  or  less  of  a  colloquial 
manner.  No  doubt  there  must,  if  it  is  more  than  ele- 
mentary, be  full  notes  before  the  speaker ;  certain  prop- 
ositions should  even  be  written  out,  and  perhaps  dic- 
tated in  precise  terms;  but  the  general  current  of  his 
words  should  flow  naturally  and  freely,  as  one  talks  to 
his  friend.  Questions  should  be  encouraged  on  the  part 
of  the  student,  and  time  cheerfully  given  for  their  an- 
swer, if  they  are  not  too  difficult,  on  the  spot.  This 
will,  no  doubt,  break  in  on  the  continuity  of  treatment 
of  the  topic  in  hand.  It  will  render  the  lecture  less 
finished.  It  will  give  more  prominence  than  it  deserves 
to  some  one  or  two  points.  But  these  will  be  points 
which  interest  at  least  one  student.  If  obscure  to  him, 
they  are  not  unlikely  to  be  obscure  to  some  of  his  com- 
rades. The  interruption  of  the  line  of  the  lecture  chal- 
lenges the  attention  of  every  one  in  the  room.  They  are 
curious  to  hear  the  question;  curious  to  hear  how  the 
professor  will  treat  it.  He  has,  at  once,  a  hold  on  the 
audience,  and  if  he  is  a  ready  man,  will  not  be  slow  to 
take  advantage  of  it. 

But,  taking  the  lecture  at  its  best,  it  is  only  the  begin- 
ning of  the  student's  work.  It  is  a  hasty  review  of 
some  large  subject  by  one  familiar  with  it,  before  many 
who  are  unfamiliar  with  it.  To  make  it  of  lasting 
value,  there  must  either  be  a  wearisome  taking  or  tran- 
scribing of  notes,  or  resort  to  published  works  on  the 
same  topic. 

The  great  bulk  of  legal  education  therefore  is  now 
through  books,  A  chapter  in  a  text-book,  or  a  group 


128      THE    YOUNG    MAN    AND    THE    LAW 

of  cases  in  a  case-book,  is  daily  given  out  as  a  subject 
of  discussion  for  the  next  exercise.  To  make  it  of  the 
most  value,  much  of  exposition,  illustration  and  addi- 
tion, perhaps  a  little  of  subtraction,  will  be  needed  in 
the  class-room.  The  great  object  in  view  is  not  such 
an  examination  as  to  show  how  much  of  the  day's  lesson 
the  student  has  read  and  how  much  he  remembers  of  it, 
but  one  to  ascertain  how  well  he  appreciates  the  mean- 
ing and  force  of  what  he  has  thus  been  asked  to  study, 
and  how  the  positions  taken  in  the  books  can  best  be 
defended,  criticized,  or  applied. 

The  members  of  the  class  are  not  to  be  treated  like 
school-boys.  The  instructor  should  try  to  find  out 
from  them  not  so  much  how  the  author  in  his  work,  or 
the  judge  in  his  opinion,  lays  down  any  rule  of  action, 
as  why  he  lays  it  down.  The  faculty  of  reasoning  on 
law  questions  can  be  taught  in  few  ways  better  than  this. 
The  fullest  and  freest  questioning  should  be  invited. 
"  Fools  can  ask  many  questions  that  wise  men  cannot 
answer."  There  will  be  hard  questions  put,  and  fool- 
ish questions  put.  There  will  be  found  in  every  class 
the  bumptious  man  who  thinks  he  can  pose  the  pro- 
fessor, and  is  only  trying  to  do  that;  the  thick-headed 
man  who  hardly  understands  how  to  put  his  questions, 
or  what  the  question  is  that  he  wants  to  put;  the  man 
who  has  just  read  some  newspaper  item  about  a  justice- 
of-the-peace  suit  in  Maine  or  Oregon,  and  wants  to 
know  if  the  decision  was  right ;  and  the  man  who  wants 
advice  about  some  case  which  his  father  is  thinking  of 
bringing.  But  there  will  be  also  the  intelligent,  quick- 


EDUCATION    REQUISITE    FOE    SUCCESS       129 

witted  student,  who  is  dissatisfied  with  some  conclusion 
stated  in  the  book,  or  detects  some  dark  point  that  has 
been  glossed  over  in  an  opinion,  and  asks  what  he  really 
wants  to  know,  and  because  he  wants  to  know  it. 

To  make  such  a  recitation  most  useful,  a  large  class 
must,  of  course,  be  cut  up,  in  college  fashion,  into  divi- 
sions. There  should  be  an  opportunity,  daily,  to  ask 
every  man  who  is  willing,  two  or  three  questions  during 
the  hour.  A  few  will  be  unwilling,  or  but  half-willing. 
A  plan  often  tried  is  to  assign  a  certain  number  of  the 
front  seats  in  the  class-room  to  those  who  are  willing, 
and  to  assume  that  those  who,  on  any  day,  sit  elsewhere, 
are  not  prepared  to  be  questioned.  The  shy  man,  the 
middle-aged  man,  who  has  broken  down  in  some  other 
business,  and  has  determined  to  try  the  law,  the  man 
who  feels  above  being  questioned  like  a  boy,  the  shirk 
and  the  dunce,  can  then  keep  in  the  rear,  if  they  choose. 

But  it  may  be  predicted  of  any  such  class  that  the 
successful  lawyers  in  it  will  almost  always  come  from  the 
front  seats.  The  legal  profession  demands  promptness, 
alertness,  readiness  to  seize  and  improve  every  fair 
chance  of  fair  advantage.  These  are  things  for  the  law 
student  to  cultivate,  lest,  when  his  day  of  judgment 
comes,  it  is  found  that  the  shy  man  is  shy  still,  the  shirk- 
ing man  a  shirk  still,  the  stupid  man  a  dunce  still,  the 
airy  man  airy  still.  They  may  all  build  up  for  them- 
selves a  better  character,  and  the  front  seat  of  a  class- 
room is  a  good  place  to  begin  in. 

Instruction  based  on  a  case-book  cannot  cover  as 


130       THE    YOUNG    MAN    AND    THE    LAW 

much  ground  as  instruction  based  on  questions  discussed 
in  a  text-book  or  a  course  of  lectures.  Too  much  space 
is  needed  for  the  frame  and  setting.  The  case-book 
must  always  be  in  substance  a  series  of  fragmentary 
discussions  of  particular  topics,  interspersed  with  frag- 
mentary portions  of  opinions  from  reported  cases. 
The  discussions  are  excellent  as  far  as  they  go.  The 
fragments  of  the  opinions  of  the  courts  are  well  selected. 
The  torso  is  there :  if  the  arms  and  legs  —  the  posture 
and  motif  —  are  not,  it  is  only  because  there  was  not 
room  for  them  in  the  collection. 

A  statue,  to  pursue  the  illustration,  is  a  work  of 
art.  Every  art  has  its  rules  and  principles.  These 
have  been  formulated  by  men  of  skill  and  experience. 
They  are  expressed  in  words.  They  are  also  ex- 
pressed in  marble.  But  the  marble  speaks  all 
that  is  in  it  only  to  the  initiated,  the  instructed.  To 
gaze  upon  it  brings  to  all  men  pleasure,  elevation  of 
thought,  perhaps  a  realization  of  history,  an  impulse 
toward  the  ideal  in  life.  But  that  one  may  feel  thus 
and  think  thus  does  not  make  him  an  artist.  A  study  of 
a  thousand  statues  could  not  make  him  even  a  good 
stone-cutter.  He  needs  the  direction  of  a  master,  the 
light  of  books,  the  dry  mathematics  of  anatomy. 

No  science  can  be  learned  purely  from  particulars. 
The  universals  must  be  studied  to  discover  what  the  par- 
ticulars mean  and  whence  they  sprang. 

No  important  case,  involving  nice  discussions,  and 
striking  out  in  new  directions,  can  be  of  its  best  service 
to  him  who  does  not  know  what  went  before  it  and  what 


EDUCATION    REQUISITE    FOE    SUCCESS       131 

has  come  after  it.  Law  is  a  science  of  relations.  The 
first  thing  for  a  law  student  to  strive  after  is  a  sense 
of  proportion.  What  is  important  and  what  unimpor- 
tant ?  What  is  settled  and  what  still  in  dispute  ?  What 
was  the  starting-point  from  which  the  judge  who  deliv- 
ered the  opinion  set  out?  What  was  the  turning  point 
of  the  case?  Is  the  logic  sound,  the  conclusion  cer- 
tain, the  result  valuable? 

These  call  for  a  judgment  of  one  who  knows  more  of 
the  subject  in  hand  than  any  compilation  of  cases  can 
put  before  him.  It  was  with  this  in  view  that  Mr.  Jus- 
tice Bradley  of  the  Supreme  Court  of  the  United  States 
once  said  of  the  object  of  legal  study : 

"  The  law  is  a  science  of  principles,  by  which  civil  society 
is  regulated  and  held  together,  by  which  right  is  eliminated 
and  enforced,  and  wrong  is  detected  and  punished.  Unless 
these  principles  are  drawn  from  the  books  which  a  student 
reads,  and  deposited  in  his  mind  and  heart,  his  reading  will 
be  but  a  dry  and  unprofitable  business.  On  the  contrary, 
if  these  principles  are  discovered  beneath  the  dry  husks 
of  the  text-books  and  reports,  if  they  are  extracted,  mas- 
tered and  retained,  it  will  not  be  so  much  the  number  of  the 
books  studied,  as  the  success  in  which  this  digesting  and 
assimilating  process  is  pursued  in  studying  them,  which  will 
make  the  great  and  successful  lawyer."  1 

It  is  of  great  assistance  in  forming  these  general  no- 
tions of  what  law  is,  if  at  some  stage  in  his  legal  educa- 
tion the  student  endeavors  to  gain  some  acquaintance 
with  what  it  was  under  the  Roman  emperors.  Such  an 

i  Great  American  Lawyers,  Vol.  VI,  Philadelphia,  1909,  p.  402. 


132      THE    YOUNG    MAN    AND    THE    LAW 

attempt,  for  most,  is  best  deferred  until  soon  before 
or  soon  after  entering  the  bar.  The  great  multiplica- 
tion of  modern  agencies  for  doing  the  work  of  the 
world  has  forced  the  creation  of  new  departments  of 
legal  science.  There  is  now  the  law  of  the  railroad, 
of  the  telegraph,  of  the  telephone,  of  the  private  busi- 
ness corporation.  There  is  a  constitutional  law,  which 
determines  the  limits  of  governmental  action.  It  is 
more  important  for  the  law  student  to  know  something 
of  these  subjects,  than  to  read  the  institutional  works 
of  Rome,  or  the  Code  Napoleon,  and  there  are  few  who 
can  accomplish  both.  Formerly  many  could,  because 
the  circle  of  strictly  American  law  was  so  much  nar- 
rower. 

John  Adams,  in  1759,  when  a  law  student,  wrote  in 
his  diary  this  advice  to  himself : 

"  Labor  to  get  distinct  ideas  of  law,  right,  wrong,  justice, 
equity;  search  for  them  in  your  own  mind,  in  Roman, 
Grecian,  French,  English  treatises  of  natural,  civil,  com- 
mon, statute  law.  Aim  at  an  exact  knowledge  of  the  nature, 
end  and  means  of  government.  Compare  the  different 
forms  of  it  with  each  other,  and  each  of  them  with  their 
effects  on  public  and  private  happiness.  Study  Seneca, 
Cicero,  and  all  other  good  moral  writers;  study  Montes- 
quieu, Bolingbroke,  Vinnius,  etc.,  and  all  other  good  civil 
writers."  x 

In  a  sketch  of  James  Otis,  perhaps  the  greatest  Amer- 
ican lawyer  in  the  years  immediately  preceding  the  Rev- 
olution, President  Adams  in  his  old  age  reiterates  these 

i  Lift  and  Works  of  John  Adams,  Vol.  1,  p.  46. 


EDUCATION    REQUISITE    FOR    SUCCESS       133 

thoughts.  Otis,  he  wrote,  was  "  a  great  master  of  the 
laws  of  nature  and  nations.  He  had  read  Puffendorf, 
Grotius,  Barbeyrac,  Burlamaqui,  Vattel,  Heineccius; 
and,  in  the  civil  law,  Domat,  Justinian,  and,  upon  occa- 
sions, consulted  the  Corpus  Juris  at  Large.  It  was  a 
maxim  which  he  inculcated  in  his  pupils,  as  his  patron  in 
the  profession,  Mr.  Gridley,  had  done  before  him  *  that 
a  lawyer  ought  never  to  be  without  a  volume  of  natural 
or  public  law,  or  moral  philosophy  on  his  table  or  in  his 
pocket.'  "  x 

A  similar  injunction,  as  concerns  the  study  of  morals, 
was  given,  in  the  next  generation,  by  Theophilus  Par- 
sons, afterwards  Chief  Justice  of  Massachusetts,  to 
John  Quincy  Adams,  when  he  was  studying  under  him. 
Parsons  advised  him  to  spend  part  of  his  time  in  the 
study  of  ethics ;  saying  that  no  man  should  enter  the  bar 
unless  his  moral  principles  were  strongly  established, 
else  the  necessity  he  would  come  under  of  defending  in- 
discriminately the  good  and  the  bad  might  lead  him  im- 
perceptibly into  universal  skepticism.2 

The  way  in  which  the  American  lawyer  formerly 
sought  to  master  his  profession  is  well  described  by  the 
late  Senator  Hoar  of  Massachusetts  in  these  words : 

"  The  old  lawyer  and  the  old  judge  began  his  education 
by  obtaining,  as  far  as  might  be,  a  mastery  of  legal  prin- 
ciples. In  general  his  first  inquiry  was,  if  any  legal  prob- 
lems were  presented  to  him,  if  it  were  a  question  of  common 

1  Wiles'  Register,  Vol.  I,  N.  S.  361. 

2  Proceedings    of    the    Massachusetts    Historical    Society,    2(J 
Series,  Vol.  XVI,  p.  349. 


134       THE    YOUNG    MAN    AND    THE    LAW 

law,  '  What  is  the  just  general  rule?  '  If  it  were  the  ques- 
tion of  the  construction  of  a  statute,  '  What  construction  of 
the  statute  will  make  of  it  a  just  general  rule?  '  In  apply- 
ing the  common  law  to  any  state  of  facts  he  took  it  for 
granted  that  the  common  law  was  the  perfection  of  reason, 
and  that  it  contained  what  the  experience  of  ages  had  found 
to  be  the  most  just  and  convenient  rules  of  conduct  for 
mankind  in  dealing  with  each  other  in  matters  concerning 
property,  or  reputation,  or  liberty,  or  life.  When  the  stu- 
dent, or  the  counselor  at  law,  or  the  judge  had  made  up  his 
mind  on  that,  he  then  considered  the  adjudged  cases  with 
the  view  of  fortifying  his  own  opinion  by  their  authority. 
If  he  found  them  in  conflict  with  that  opinion,  before  yield- 
ing to  them,  he  did  his  best  to  reconcile  them  with  his  idea 
of  justice,  to  limit  and  restrict  them  as  far  as  possible  and, 
unless  the  current  of  authority  were  too  strong,  to  get  them 
overruled  if  they  were  wrong.  The  study  of  law  was  a 
study  of  ethics  or  moral  philosophy."  - 

In  general,  this  may  be  accepted  as  still  describing 
the  influences  and  motives  that  should  guide  the  law 
student  who  is  desirous  to  win  a  high  place  in  his  pro- 
fession. It  may  not  unjustly  be  accused,  however,  of 
leading  too  distinctly  to  an  exaggerated  valuation  of  the 
common  law. 

The  lawyer  must  always  be  on  his  guard  against  ac- 
cepting traditional  views  too  unreservedly.  Law  is  a 
progressive  science  and  he  must  watch  the  signs  of 
progress,  as  they  come  in  view.  He  must  do  his  part 
in  contributing  in  law,  as  in  everything  else,  to  general 
social  advancement.  But  he  must  know  the  past  in  or- 

i  Massachusetts  Historical  Society  Proceedings,  Vol.  XVIII,  p. 
159. 


EDUCATION    REQUISITE    FOE    SUCCESS       135 

der  to  plan  the  future.  He  must  also  stand  firm  in 
defense  of  constitutional  safeguards  in  favor  of  indi- 
vidual liberty.  Oppression  by  organized  society  was 
a  thing  to  be  afraid  of  until  the  American  and  French 
revolutions  set  up  those  safeguards.  If  they  are  neg- 
lected or  discredited,  and  class  legislation  goes  too  far, 
history  may  repeat  itself.  An  American  sociologist 
has  recently  given  his  views  as  to  a  proper  training  for 
the  bar.  They  are  these: 

"  Lawyers  need  a  thoroughly  modern  education  which 
means  that  they  should  not  study  much  law.  They  need  to 
get  the  biological  or  evolutionary  point  of  view,  to  conceive 
of  society  as  on  the  way  to  being  different.  The  authorita- 
tive solemnity  of  the  legalist  needs  to  be  mitigated;  justice 
does  not  reside  in  the  breasts  of  judges  unless  judges  look 
upon  life  unfettered  by  tradition.  There  is  a  better  intelli- 
gence than  that  represented  by  the  law.  There  is  a  valid 
idealism  which  is  everywhere  blocked  by  legalism.  It  is 
unfair  to  measure  the  intelligence  of  a  people  by  their 
institutions,  provided  a  tradition-reversing  type  is  in  a 
position  to  apply  a  strangle-hold  on  new  thought  through 
power  to  interpret  and  to  pass  on  the  constitutionality  of 
laws.  With  government  thus  subject  to  the  legal  mind, 
popular  intelligence  cannot  function  happily."  * 

There  is  a  half  truth  here.  The  Anglo-American  law 
.grew  up  under  social  conditions  some  of  which  have 
passed  away,  and  some  are  passing  now. 

We  come  here  to  a  point  where  the  philosophy  of 
pragmatism  calls  for  consideration.  Is  the  theory  of  a 
divine  revelation  of  the  principles  of  human  law  to  be 

i  Weeks,  American  Journal  of  Sociology,  VoL  XXI,  p.  397. 


136      THE    YOUNG    MAN    AND    THE    LAW 

taught,  or  to  be  rejected,  or  to  be  passed  over  in  si- 
lence? Shall  we  say,  with  the  Roman  Stoics  that  there 
is  a  law  of  nature,  into  which  every  man  is  born?  Or 
is  law  a  mere  expression  in  each  government  of  the  sov- 
ereign's will?  Or  is  it  whatever  rule  promises  to  be  the 
most  profitable  for  a  people  to  follow  and  courts  to  rec- 
ognize in  their  behalf  ? 

An  inclination  towards  the  theory  last  suggested 
seems  indicated  in  an  address  on  legal  education  given 
in  1897  by  one  of  the  most  distinguished  of  American 
jurists,  Mr.  Justice  Oliver  Wendell  Holmes,  in  an  ad- 
dress before  the  Boston  University  School  of  Law. 
What  was  to  be  taught  there,  he  said  was  that  "  a  legal 
duty  so  called  is  nothing  but  a  prediction  that  if  a  man 
does  or  omits  certain  things  he  will  be  made  to  suffer 
in  this  or  that  way  by  judgment  of  the  court ;  —  and  so 
of  a  legal  right.  .  .  .  The  first  thing  for  a  businesslike 
understanding  of  the  matter  is  to  understand  its  limits, 
and  therefore  I  think  it  desirable  at  once  to  point  out 
and  dispel  a  confusion  between  morality  and  law,  which 
sometimes  rises  to  the  height  of  conscious  theory  and 
more  often,  and  indeed  constantly,  is  making  trouble 
in  detail  without  reaching  the  point  of  consciousness. 
We  can  see  very  plainly  that  a  bad  man  has  as  much 
reason  as  a  good  one  for  wishing  to  avoid  an  encounter 
with  the  public  force,  and  therefore  you  can  see  the 
practical  importance  of  the  distinction  between  moral- 
ity and  law.  ...  I  think  that  the  judges  themselves 
have  failed  adequately  to  recognize  their  duty  of  weigh- 
ing considerations  of  social  advantage.  The  duty  is 


EDUCATION    REQUISITE    FOR    SUCCESS       137 

inevitable,  and  the  result  of  the  often  proclaimed  ju- 
dicial aversion  to  deal  with  such  considerations  is  simply 
to  leave  the  very  ground  and  foundation  of  judgments 
inarticulate  and  often  unconscious,  as  I  have  said. 
When  socialism  first  began  to  be  talked  about,  the  com- 
fortable classes  of  the  community  were  a  good  deal 
frightened.  I  suspect  that  this  fear  has  influenced  ju- 
dicial action  both  here  and  in  England,  yet  it  is  certain 
that  it  is  not  a  conscious  factor  in  the  decisions  to 
which  I  refer.  I  think  that  something  similar  has  led 
people  who  no  longer  hope  to  control  the  legislatures 
to  look  to  the  courts  as  expounders  of  the  Constitu- 
tions, and  that  in  some  courts  new  principles  have  been 
discovered  outside  the  bodies  of  those  instruments, 
which  may  be  generalized  into  acceptance  of  the  eco- 
nomic doctrines  which  prevailed  about  fifty  years  ago, 
and  a  wholesale  prohibition  of  what  a  tribunal  of  law- 
yers does  not  think  about  right.  I  cannot  but  believe 
that  if  the  training  of  lawyers  led  them  habitually  to 
consider  more  definitely  and  explicitly  the  social  ad- 
vantage on  which  the  rule  they  lay  down  must  be  justi- 
fied, they  sometimes  would  hesitate  where  now  they  are 
confident,  and  see  that  really  they  were  taking  sides 
upon  debatable  and  often  burning  questions." 

Whatever  law  may  be  in  its  essential  nature,  it  is 
certain  that  it  moves  by  logical  processes.  The  law  stu- 
dent who  is  well  trained  in  these,  as  applied  to  other 
subjects,  will  find  constant  occasion  to  recognize  their 
value  in  attaining  legal  truths  and  detecting  legal 


138       THE    YOUNG    MAN    AND    THE    LAW 

fallacies.  Judge  George  H.  Smith,  in  his  treatise  on 
Logic,1  gives  some  apt  illustrations  of  this.  One  fault 
of  statement  obviously  is  an  illicit  substitution  of 
terms.  Austin,  for  instance,  describes  law  as  the 
product  of  sovereignty,  and  sovereign  power  as  in- 
capable of  legal  limitation,  and  then  refers  to  it  as 
consequently  "  legally  despotic  " ;  whereas  to  be  legally 
despotic  is  to  be  despotic  by  law,  and  —  according  to 
Austin  —  law  is  only  the  expression  of  the  will  of  the 
sovereign.  So  Chief  Justice  Marshall,  in  the  Georgia 
Land  Fraud  case,2  held  that  an  executed  grant  was  a 
contract  within  the  meaning  of  the  constitutional  pro- 
hibition of  State  laws  impairing  the  obligation  of  con- 
tracts ;  and  so  that  impairing  the  obligation  of  a  con- 
tract was  effected  by  impairing  a  past  grant.  The 
term  "  impairing  a  contract "  was  thus  substituted, 
according  to  Judge  Smith,  for  the  term  "  impairing 
the  obligation  of  a  contract."  Be  this  as  it  may,  there 
certainly  are  many  cases  in  courts  in  the  argument  of 
which  there  is  either  an  illicit  substitution  of  new  terms 
as  the  equivalent  of  terms  previously  used,  or  an  illicit 
substitution  of  a  new  sense  for  a  term,  previously  em- 
ployed in  another  —  the  fallacy  technically  called 
Equivocation. 

But  the  faculty  of  logical  reasoning  is  one  of  those 
that,  for  ready  use,  must  be  born  in  the  man.  It  was 
born  in  Lincoln,  of  whom  John  Hay  said  that  he  could 

1  Smith,  Logic  or  the  Analytic  of  Explicit  Reasoning,  New  York, 
1901,  p.  200.     Cf.  id.,  163. 

2  Fletcher  v.  Peck,  6  Cranch's  Reports,  p.  135. 


EDUCATION    REQUISITE    FOR    SUCCESS       139 

"  rake  a  sophism  out  of  its  hole,  better  than  all  the 
trained  logicians  of  all  the  schools." 

There  are  many  men  on  whom  a  legal  education  would 
be  thrown  away,  and  many  on  whom  it  daily  is  being 
thrown  away.  Education  does  not  create.  It  im- 
proves. It  discloses  what  is  already  there.  It  consists 
in  drawing  out  —  leading  out  —  what  already  exists, 
inside.  We  develop  from  within.  We  are  what  we  are ; 
but  it  takes  a  drawing  out  process  to  show  what  we  are. 

Somebody  has  said  that  every  human  being  is  com- 
posed of  two  human  beings :  one  of  them  always  very 
sagacious,  and  the  other  of  them  not  at  all  sagacious. 
If  so,  the  sagacious  being  does  not  show  himself  simply 
in  throwing  up  the  hand  in  order  to  ward  off  a  sudden 
and  unexpected  blow,  or  any  of  those  movements  which 
we  are  pleased  to  call  instinctive.  He  shows  himself 
also  in  sound  moral  sense ;  in  seeing  a  point,  as  we  say ; 
in  deliberate  good  judgment;  in  every  day  practical 
wisdom. 

Education  cannot  make  lawyers.  It  can  help  draw 
out  and  put  in  more  active  shape  those  inherent  quali- 
ties to  which  I  have  alluded,  and  others  of  like  kind. 
One  of  the  leaders  in  his  time  of  the  American  bar, 
Charles  O'Conor,  once  said :  "  A  great  lawyer  is  not 
the  one  who  knows  the  most  law,  but  who  understands 
exactly  the  point  involved."  Such  an  analytic  faculty 
is  one  of  God's  gifts.  Man  can  sharpen,  but  not  supply 
it.  The  inner  man  is  the  real  man,  but  in  half  the 
world  he  does  not  have  a  fair  chance  to  show  himself  at 


140      THE    YOUNG    MAN    AND    THE   LAW 

its  best.  The  leading  American  law  schools  give  this 
chance  to  those  who  enter  them.  If  they  are  men  who 
have  made  the  most  of  their  previous  education,  they 
will  be  pretty  certain  to  make  the  most  of  this.  If 
they  are  college  graduates,  their  rank  in  College  will 
probably  compare  closely  with  that  in  their  law  classes. 

It  has  been  often  said  that  a  man  who  has  been  a 
shirk  in  college  may  prove  a  leader  when  he  passes  into 
the  law  school.  In  fact,  this  seldom  happens.  Statis- 
tics show  that  the  better  scholars  in  law  are  those  who 
have  been  among  the  better  scholars  during  the  period 
of  their  previous  training.1 

A  lawyer's  education  never  ends.  What  may  suffice 
to  secure  his  admission  to  the  bar  simply  ends  one  stage 
of  it.  The  best  lawyer  is  the  one  who  makes  the  most 
progress  in  the  second  stage.  The  first  years  of  this 
are  the  most  important.  He  will  probably  have  ample 
time  for  the  work.  Entering  the  bar  to  most  men 
brings  perforce  the  opportunity  for  further  study.  A 
young  lawyer  seldom  has  clients  enough  to  employ  all 
his  time.  If  he  begins  as  an  office  clerk,  he  will  gener- 
ally have  his  evenings,  at  least,  at  his  own  disposal. 
He  will  prosper  best  in  after  years,  if  he  uses  these  first 
ones  for  close  and  continued  study  of  two  things :  — 
law  and  literature. 

Senator  Chauncey  M.  Depew  has  urged  this  in  these 
words  : 

"  The  valedictorian  of  the  college,  the  brilliant  victors 
of  the  Moot  Courts  who  failed  to  fulfill  the  promise  of  their 
i  See  Harvard  Law  Review,  Vol.  XXIV,  p.  497. 


EDUCATION    REQUISITE    FOR    SUCCESS      141 

youth,  have  neglected  to  continue  the  study  and  lost  the 
enthusiasm  to  which  they  owed  their  triumphs  on  mimic 
battlefields.  Business  men  may  have  a  lucky  stroke  of 
fortune;  preachers  may  buy  or  borrow  sermons;  quacks 
may  win  riches  by  a  patent  medicine;  but  the  lawyer  can 
rely  on  no  one  but  himself.  He  is  like  the  knight  in  the 
ancient  tournament,  when  the  herald  sounded  the  trumpet, 
and  he  rode  down  the  lists.  Whether  he  splintered  his 
enemy's  lance  or  was  unhorsed  himself,  depended  upon  his 
own  prowess  and  skill.  Upon  his  advice  men  risk  their 
character  and  fortunes.  In  the  exigencies  of  the  trial  he 
wins  or  loses  by  his  own  knowledge  of  his  case,  his  ability 
to  draw  from  a  well  stocked  armory  the  principles  to  meet 
unexpected  issues,  his  readiness  to  seize  and  turn  to  instant 
advantage  testimony  which  can  help  to  avert  the  force  of 
that  which  can  harm,  by  his  trained  ability  to  so  discern  and 
analyze  amidst  the  mass  of  conflicting  evidence  the  truth 
he  seeks,  and  so  present  his  cause  to  the  court  and  jury, 
that  he  brings  them  both  to  his  own  convictions.  This  can 
only  be  done  by  thorough  preparation  and  laborious  study 
continued  all  through  life.  It  is  very  difficult,  with  no 
immediate  motive  to  offer  incentive,  to  study  and  read 
while  waiting  for  clients.  It  requires  discipline,  and  is 
discipline.  It  tests  the  question  of  fitness  for  the  work 
of  the  profession." 


CHAPTER  VI 

THE   IDEAI/S    OP    THE    PROFESSION 

The  maintenance  of  public  order  under  law.  And  of  justice. 
Altruism.  Malesherbes'  defense  of  Louis  XVI.  Disregard  of 
personal  interest,  for  others'  sake.  Modern  improvements  in  the 
American  bar.  Its  influence  in  legislation.  Law,  an  applied  sci- 
ence. The  common  law  not  the  perfection  of  reason.  Not  fitted 
to  secure  justice,  in  all  lands.  Justice  inevitably  comes,  some 
day,  to  its  own.  Carlyle's  testimony.  Cicero's  characterization 
of  the  rule  of  right.  The  attack  of  Mephistopheles,  in  Faust,  on 
inherited  laws.  The  opportunity  of  the  lawyer  to  develop  law. 
Lord  Eldon's  creation  of  a  new  rule  of  equity.  Ignorance  of 
law,  not  knowledge  of  it,  leads  to  litigation.  Lawyers  hold  a 
place  of  duty  to  the  State,  and  to  Society  at  large.  Chief  Jus- 
tice Ryan's  picture  of  this  duty  both  for  lawyers  and  Judges. 

EVERY  man  has  his  ideals,  though  he  may  not  name 
them  such,  or  even  recognize  that  they  exist.  The 
lawyer  cannot  fail  to  recognize  the  ideals  which  he  ought 
to  pursue  in  justice  to  his  profession.  His  whole  work 
in  life  is  devoted  to  the  definition  and  establishment  of 
public  order  under  law.  No  one  ought  to  seek  to  share 
in  that  work,  who  does  not  feel  its  essential  nobility,  and 
who  is  not  ready  to  adorn  and  defend  it  with  the  best 
that  in  him  lies.  His  practice  may  be  small ;  his  efforts 
poor.  All  the  more  should  he  struggle  to  do  his  part 
in  making  justice  in  common  things  known  and  con- 
stant. He  must  be  ready  to  say  with  Lowell : 

"  Still  through  our  paltry  stir  and  strife 
Glows  down  the  wished  Ideal. 
142 


THE    IDEALS    OF    THE    PEOFESSION       143 

And  Longing  molds  in  clay  what  Life 
Carves  in  the  marble  Real." 

A  lawyer's  ideals  are  imposed  upon  him  by  that 
sentiment  of  altruism  which  is  the  life  of  his  profession. 
Noblesse  oblige.  Nobility  under  our  institutions  does 
not  belong  to  any  individual.  If  some  foreign  sovereign 
decorates  an  American  with  a  title,  it  confers  no 
preeminence  upon  him  here.  But  under  our  institu- 
tions, that  nobility  of  purpose  and  character  which 
belongs  to  the  legal  profession  in  other  countries,  be- 
longs to  it  in  equal  measure  in  the  United  States.  It  is 
everywhere,  as  concerns  its  most  conspicuous  office  — 
the  advocacy  of  causes  —  a  profession  of  strenuous  and 
chivalric  endeavor,  and  honored,  as  such,  now  as  much 
as  in  any  former  times  or  other  lands.  It  is  the  pro- 
fession of  those  who  contend  for  the  rights  of  others. 
Altruism  and  personal  sacrifice  are  its  foundations. 

This  sentiment  was  the  inspiration  of  Malesherbes, 
when  he  claimed  the  honor  of  defending  the  king  whose 
disregard  of  his  counsels  had  cost  him  his  crown  and 
was  to  cost  him  his  life.  It  was  the  inspiration  of 
Denman  in  supporting  the  rights  of  Queen  Caroline ;  of 
Evarts  before  the  Senate  of  the  United  States  on  the 
impeachment  of  President  Johnson. 

Great  occasions  like  these  come  seldom,  but  the  same 
qualities  of  advocacy  are  displayed  and  the  same  duties 
of  advocacy  discharged  daily,  in  every  American  State. 
Disregard  of  personal  interest  in  fulfillment  of  pro- 
fessional obligations ;  sacrifice  of  personal  convenience 
to  secure  the  interests  of  others ;  putting  all  one's  pow- 


144?      THE    YOUNG    MAN    AND    THE    LAW 

ers  of  mind  and  body  in  one  supreme  effort  of  concen- 
trated energy  at  the  service  of  clients ;  —  these  are  the 
common  story  of  the  contests  of  the  bar. 

The  advocate  can  achieve  the  ideals  of  his  profession 
without  eloquence.  Simple,  plain,  straightforward 
statement  is  often  better  than  eloquence.  He  can 
achieve  them,  without  any  legal  learning  that  could  be 
called  profound.  A  fair  knowledge  of  law,  with  the 
power  to  make  the  most  of  what  you  know,  is  generally 
enough.  He  cannot  achieve  them  without  a  high  sense 
of  the  rights  of  man,  as  man;  without  a  sincere  rever- 
ence for  the  institutions  of  human  justice;  without 
patient,  self-forgetful,  chivalric  devotion  to  his  client's 
cause. 

In  a  recent  treatise  by  the  dean  of  one  of  the  prin- 
cipal American  Law  Schools,  he  says  that,  taking  into 
account  the  entire  history  of  the  American  bar,  there 
has  been  a  deterioration  "  both  in  its  personnel,  its 
corporate  mode,  and  consequently  in  the  public  influence 
wielded  by  it."  *  I  cannot  agree  with  him.  The  lead- 
ers everywhere  compare  well  with  the  leaders  of  the 
eighteenth  and  nineteenth  centuries.  The  "  corporate 
mode  "  of  the  bar  has  been  immensely  bettered  and 
assured,  and  its  public  influence  concentered  and 
strengthened  by  the  formation  of  the  American  Bar 
Association  in  1878,  and  of  the  numerous  affiliated  State 
and  local  bar  associations,  a  few  before,  but  most  after 
that  event. 

With  their  aid,  the  bar  has  succeeded  in  greatly 
i  Stone,  Law  and  it«  Administration,  New  York,  1915,  p.  165. 


THE    IDEALS    OF    THE    PROFESSION       145 

raising  the  standard  of  qualification  for  admission  to 
it ;  in  relieving  the  Supreme  Court  of  the  United  States 
from  a  load  of  business  which  was  beyond  its  powers 
to  sustain;  and  in  the  abrogation  of  many  rules  of 
judicial  procedure,  some  inherited  from  the  prejudices 
of  a  half  civilized  society,  and  some  imposed  by  unwise 
statutes.  "  Ideas,"  as  Wendell  Phillips  once  said, 
"  strangle  statutes."  The  American  bar  has  come 
under  the  influence  of  new  ideas,  and  its  work  in  legisla- 
tion has  been  to  repeal  here  and  add  there,  in  general 
conformity  to  modern  thought. 

The  great  ideal  to  be  held  up  before  the  members  of 
every  profession,  is  to  make  it  better.  For  the  lawyer 
it  is  first  to  work  out  a  clearer  conception  in  his  own 
mind  of  the  nature  of  law  as  an  applied  science,  and  its 
relation  everywhere  to  its  national  environment. 

One  of  the  English  leaders  of  thought  as  to  the 
philosophy  of  the  law,  Sir  Frederick  Pollock,  has  spoken 
thus  of  this  subject  of  endeavor: 

"  We  have  long  given  up  the  attempt  to  maintain  that 
the  common  law  is  the  perfection  of  reason.  Existing 
human  institutions  can  only  do  their  best  with  the  conditions 
they  work  in.  If  they  can  do  that  within  the  reasonable 
margin  to  be  allowed  for  mistakes  and  accidents,  they  are 
justified  in  their  generation.  Even  their  ideal  is  relative. 
What  is  best  for  one  race  or  society,  at  a  given  stage  of 
civilization,  is  not  necessarily  best  for  other  races  and 
societies  at  other  stages.  We  cannot  say  that  one  set  of 
institutions  is  in  itself  better  or  more  reasonable  than 
another,  except  with  reference,  express  or  implied,  to  con- 
ditions that  are  assumed  either  to  be  universal  in  human 


146   THE  YOUNG  MAN  AND  THE  LAW 

societies,  or  to  be  not  materially  different  in  the  particular 
cases  compared.  It  may  perhaps  be  safe  to  assume,  in  a 
general  way,  that  what  is  reasonable  for  Massachusetts  is 
reasonable  for  Vermont.  It  would  not  be  at  all  safe  to 
assume  that  everything  reasonable  for  Massachusetts  is 
reasonable  for  British  India,  nor,  indeed,  that  within 
British  India  what  will  serve  for  Lower  Bengal  will 
equally  well  serve  for  the  northwest  frontier.  The  first 
right  of  every  system,  therefore,  is,  to  be  judged  in  its  own 
field,  by  its  own  methods,  and  on  its  own  work.  It  cannot 
be  seen  at  its  best,  or  even  fairly,  if  its  leading  conceptions 
are  forced  into  conformity  with  an  alien  mold.  A  sure 
mark  of  the  mere  handicraftsman  is  to  wonder  how  foreign- 
ers can  get  on  with  tools  in  any  way  different  from  his  own. 
.  .  .  Development  is  a  process,  and  not  a  succession  of  inci- 
dents. Environment  limits  and  guides  the  direction  of 
effort;  it  cannot  create  the  living  growth.  Hence  it  seems 
to  follow  that  a  system  which  is  vital  and  really  individual 
either  must  be  resigned  to  remain  in  some  measure  inarticu- 
late, or  must  have  some  account  to  give  of  itself  that  is  not 
merely  dogmatic  and  not  merely  external  history,  but  com- 
bines the  rational  and  the  historical  element.  In  other 
words,  its  aims  are  not  completely  achieved  unless  it  has  a 
philosophy ;  and  that  philosophy  must  be  its  own." 

To  a  thoughtful  man,  and  to  some  extent  even  to  a 
thoughtless  one,  the  practice  of  law  calls  attention  daily 
to  the  causes  of  things.  Is  the  result  of  this  or  that 
suit  to  promote  justice,  or  to  postpone  it?  For  that 
somehow  justice  will  finally  be  worked  out,  is  the  ideal 
of  law  to  be  upheld  at  all  times  by  the  legal  profession. 

Carlyle  brought  this  message  sharply  home  in  his 
Past  and  Present: 

"  Alas,"  he  says,  "  how  many  causes  that  can  plead 


THE    IDEALS    OF    THE    PROFESSION       147 

well  for  themselves  in  the  Courts  of  Westminster;  and 
yet  in  the  general  Court  of  the  Universe  and  free  Soul 
of  Man,  have  no  word  to  utter !  .  .  .  For  it  is  the  Court 
of  Courts,  that  same;  where  the  universal  soul  of  Fact 
and  very  Truth  sits  President;  and  thitherward,  more 
and  more  swiftly,  with  a  really  terrible  increase  of 
swiftness,  all  causes  do  in  these  days  crowd  for  revisal, 
for  confirmation,  for  modification,  for  reversal  with 
costs.  Dost  thou  know  that  Court ;  hast  thou  had  any 
Law-practice  there?  What,  didst  thou  never  enter; 
never  file  any  petition  of  redress,  reclaimer,  disclaimer, 
or  demurrer,  written  as  in  thy  heart's  blood  for  thy 
own  behoof  or  another's ;  and  silently  await  the  issue  ? 
Thou  knowest  not  such  a  Court?  Hast  merely  heard  of 
it  by  faint  tradition,  as  a  thing  that  was  or  had  been? 
Of  thee,  I  think,  we  shall  get  little  benefit." 

The  court  of  conscience,  administering  the  golden 
rule,  lies  within  the  range  of  ideals,  entertained  in  com- 
mon by  lawyers  in  ancient  and  lawyers  in  modern  times. 
Two  thousand  years  ago  Cicero  declared  that  "  there  is 
one  rule  of  right  (jus)  by  which  human  society  is  bound 
together,  and  which  is  constituted  by  one  law;  which 
law  is  the  rightful  reason  of  command  and  prohibition ; 
and  he  who  is  ignorant  of  it  is  unjust,  whether  it  be 
written  anywhere  or  nowhere.  But  if  justice  is  con- 
formity to  written  laws  and  public  institutions,  and  if 
such  a  one  says  that  all  things  are  to  be  measured  by 
their  utility,  let  him  be  careless  of  laws  and  break  them 
if  he  can,  who  shall  judge  that  this  is  for  his  advantage. 
So  it  is  that  there  is  no  justice  anywhere  if  it  do  not 


148       THE    YOTJNG    MAN    AND    THE    LAW 

exist  by  nature,  and  that  which  is  set  up  for  its  utility 
be  destroyed  for  another  utility.  And  if  nature  shall 
not  be  ready  to  confirm  the  rule  of  right  all  virtues  will 
perish.  For  where  shall  liberality,  where  love  of  coun- 
try, where  piety,  where  the  desire  of  meriting  well 
from  another  or  doing  him  a  favor  be  able  to  exist? 
For  they  are  born  of  this,  that  by  nature  we  are  dis- 
posed to  love  our  fellow  men;  which  is  the  foundation 
of  the  rule  of  right.  Nor  only  are  services  for  men  cut 
off,  but  worship  and  religious  observances  as  to  the 
gods,  which  I  esteem  to  be  preserved  not  from  fear 
but  from  that  union  which  exists  between  God  and 
man."  1 

It  will  be  observed  that  the  great  orator  here  reaches 
much  the  same  conclusions  as  those  announced  by  Jesus 
Christ  and  Paul  in  the  following  century.2 

The  one,  unvarying  ideal  of  the  legal  profession  is  to 
advance  and  perfect  the  law  which  it  is  created  to  call 
into  action.  It  is  always  in  danger  of  pushing  this  pur- 
pose of  improvement  too  far.  It  is  always  in  greater 
danger  of  not  carrying  it  far  enough. 

Lovers  of  Goethe  will  recall  the  brilliant  scene  in 
Faust's  study,  when  Mephistopheles  dons  a  Professor's 
cap  and  gown,  and  grants  an  interview  to  a  student  who 
wishes  advice  as  to  whether  he  should  study  law  for  his 
profession.  My  dear  boy,  he  replies,  keep  clear  of  that. 
Laws  and  notions  of  right  are  inherited  like  an  eternal 

1  Cicero,  De  Legibus,  I,  XV. 

2  Mark,  Ch.  XII,  31;  1  Corinthian*,  Ch,  XIII- 


THE    IDEALS    OF    THE    PROFESSION       149 

disease:  they  slide  themselves  along  from  generation  to 
generation,  and  spread  imperceptibly  from  place  to 
place.  Reason  becomes  nonsense,  and  the  best  actions 
are  called  wrong.  Wo  to  thee  that  thou  art  somebody's 
grandson!  Of  the  legal  notions  that  we  are  born  with 
there  is  unfortunately  never  any  question  made. 

If  we  strip  this  charge  of  its  poetic  intensity,  it  is 
true.  The  lawyer,  and  particularly  the  American 
lawyer,  is  naturally  a  conservative  force  in  human 
society.  He  professes  a  science  which  some  of  his  pre- 
decessors at  the  bar  have  praised  as  the  perfection  of 
reason.  He  must  steadily  aim  to  guard  himself  against 
sharing  that  opinion.  He  must  be  ready  to  confess 
that  there  are  faults  in  American  law  and  judicial  pro- 
cedure which  can  be  safely  eliminated,  and  to  do  one 
man's  part,  at  least,  towards  getting  rid  of  them. 

A  lawyer  is  potentially  a  discoverer  and  may  have 
the  joy  of  one.  Law  is  a  progressive  science.  It 
changes  for  the  better,  so  far  at  least  as  that  springing 
from  custom  and  common  consent  is  concerned,  wherever 
society  is  advancing. 

This  gives  the  young  lawyer  a  great  opportunity,  a 
high  and  not  remote  ideal.  The  main  principles  of  law 
are  unchangeable,  but  new  corollaries  are  always 
coming  into  view.  He  may  be  the  first  to  discern  one 
of  them  or  to  put  it  in  an  assured  position.  If  so,  he 
will  have  his  reward. 

Lord  Chancellor  Eldon  began  his  professional  career 
without  influential  friends  and  in  circumstances  of  real 


150       THE    YOUNG    MAN    AND    THE    LAW 

poverty.  A  chancery  decree  was  to  be  entered,  to 
which  all  the  solicitors  engaged  in  the  cause  had  agreed. 
One  of  them  retained  John  Scott  (which  was  the  name 
of  the  future  chancellor)  to  give  his  client's  formal 
consent  in  court  before  Lord  Thurlow.  The  case 
turned  on  the  equitable  nature  and  incidents  of  a  fund 
which  was  to  be,  but  had  not  yet  been,  turned  into 
property  of  a  different  kind.  A  will  had  directed  this 
change  of  form,  but  before  it  was  made,  the  decree  was 
to  be  entered.  It  struck  Scott,  as  he  read  the  papers, 
that  in  equity  a  thing  ought  to  be  regarded  as  done, 
which  ought  to  be  done,  wherever  this  would  promote  a 
fair  accomplishment  of  the  intention  of  those  who  im- 
posed the  obligation.  In  the  case  before  him  that  doc- 
trine, if  applied,  would  secure  an  important  advantage 
for  his  client.  He  asked  the  solicitor's  authority  to 
raise  the  point  before  the  court,  and  received  it,  on 
condition  that  there  should  be  no  charge  for  arguing 
it.  The  court  took  his  view  and  his  fortune  was  made. 
He  had  become  the  father  of  a  far-reaching  rule  of 
right,  ever  since  known  as  that  of  "  equitable  conver- 
sion." 

On  the  other  hand,  an  ancient  rule  should  not  be 
varied  or  a  new  one  adopted  without  careful  thought. 
The  chance  of  this  brings  an  element  of  uncertainty  into 
the  practice  of  the  profession  before  the  courts.  The 
better  the  education  for  the  bar,  the  more  fully  will  the 
student  come  to  feel  that  while  law  may  be  and  in  prin- 
ciple is  a  thing  of  certainty,  the  result  of  its  adminis- 
tration often  is  not.  With  this  knowledge,  a  lawyer 


THE    IDEALS    OF    THE    PROFESSION       151 

will  be  always  cautious  in  advising  the  entry  into  litiga- 
tion. 

Cicero,  in  the  dialogue  which  opens  his  treatise  De 
Legibus,  throws  this  distinction  into  strong  light.1 
Asked  to  explain  what  law  is,  he  begins  by  explaining  its 
foundations  in  the  nature  of  man.  Quintus  commends 
this,  saying  that  those  who  describe  the  law  of  a  State 
otherwise,  describe  not  so  much  justice,  as  ways  of  liti- 
gation. Not  so,  Quintus,  is  the  reply.  Ignorance  of 
law  is  litigious  rather  than  knowledge  of  it. 

The  "  bidding  prayer  "  of  Oxford  University  asks 
for  aid  to  turn  out  men  "  qualified  to  serve  God  in 
Church  and  State."  The  lawyer's  place  is  one  of 
service  in  the  State.  For  this  he  exists,  as  a  member 
of  a  privileged  profession,  to  which  is  committed  a  large 
part  in  the  administration  of  that  law  which,  however 
we  may  name  the  author,  has  certain  principles  as 
invariable  as  the  law  of  gravity.  Its  ideal  is  to  do 
this  service  in  large  and  in  trivial  affairs,  alike ;  by  the 
use  of  such  powers  as  one  may  have,  be  they  great  or 
small;  with  a  loyalty  to  the  constant  principles  of  law, 
not  inconsistent  with  the  hope  of  amending  and  improv- 
ing it  in  minor  things ;  always  striving  to  aid  in  the 
world-wide  effort,  ever  being  made,  to  make  law  and 
justice  one  and  the  same. 

In  this  spirit  Chief  Justice  Ryan  of  Wisconsin,  in  an 
address  before  the  Law  School  of  the  University  of 
Wisconsin,  used  this  language: 

i  Lib.  I,  Cap.  6. 


152       THE    YOUNG    MAN    AND    THE    LAW 

"  This  is  the  true  ambition  of  the  lawyer :  To  obey  God 
in  the  service  of  society;  to  fulfill  His  law  in  the  order  of 
society ;  to  promote  His  order  in  the  subordination  of  society 
to  its  own  law  adopted  under  His  authority;  to  minister 
His  justice  by  the  nearest  approach  to  it  under  the  munic- 
ipal law  which  human  intelligence  and  conscience  can  ac- 
complish. To  serve  man  by  diligent  study  and  true  counsel 
of  the  municipal  law;  to  aid  in  solving  the  questions  and 
guiding  the  business  of  society  according  to  law;  to  fulfill 
his  allotted  part  in  protecting  society  and  its  members 
against  wrong,  in  enforcing  all  rights  and  redressing  all 
wrongs ;  and  to  answer  before  God  and  man  according  to 
the  scope  of  his  office  and  duty  for  the  true  and  just  admin- 
istration of  the  municipal  law.  There  go  to  this  ambition, 
high  integrity  of  character  and  life;  inherent  love  of  truth 
and  right;  intense  sense  of  obedience,  of  subordination  to 
law,  because  it  is  law;  deep  reverence  of  all  authority,  hu- 
man and  divine;  generous  sympathy  with  man,  and  profound 
dependence  on  God.  These  we  can  all  command.  There 
should  go  high  intelligence.  That  we  cannot  command. 
But  every  reasonable  degree  of  intelligence  can  conquer 
adequate  knowledge  for  meritorious  service  in  the  pro- 
fession." 1 

These  words  came  from  a  great  judge  and  one  who 
set  a  high  standard  also  of  duty  for  the  bench.  He 
composed  a  prayer  in  a  similar  line  of  thought  for  his 
daily  use,  which  is  here  given  both  as  one  of  the  gems 
of  judicial  composition,  and  one  of  the  lights  by  which 
every  judge  might  well  guide  his  official  course,  in  seek- 
ing to  promote  his  ideal  of  justice  on  earth: 

"  O  God  of  all  truth,  knowledge  and  judgment,  without 
i  Winslow,  The  Story  of  a  Great  Court,  p.  316. 


THE    IDEALS    OF    THE    PROFESSION       153 

whom  nothing  is  true  or  wise  or  just,  look  down  with  mercy 
upon  Thy  servants  whom  Thou  sufferest  to  sit  in  earthly 
seats  of  judgment  to  administer  Thy  justice  to  Thy  people. 
Enlighten  their  ignorance  and  inspire  them  with  Thy  judg- 
ments. Grant  them  grace  truly  and  impartially  to  ad- 
minister Thy  justice  and  to  maintain  Thy  truth  to  the 
glory  of  Thy  name.  And  of  Thy  infinite  mercy  so  direct 
and  dispose  my  heart  that  I  may  this  day  fulfill  all  my  duty 
in  Thy  fear,  and  fall  into  no  error  of  judgment.  Give  me 
grace  to  hear  patiently,  to  consider  diligently,  to  under- 
stand rightly  and  to  decide  justly.  Grant  me  due  sense  of 
humility,  that  I  be  not  misled  by  my  willfulness,  vanity  or 
egotism.  Of  myself  I  humbly  acknowledge  my  own  unfit- 
ness  and  unworthiness  in  Thy  sight,  and  without  Thy 
gracious  guidance  I  can  do  nothing  right.  Have  mercy 
upon  me  a  poor,  weak,  frail  sinner,  groping  in  the  dark; 
and  give  me  grace  so  to  judge  others  now,  that  I  may  not 
myself  be  judged  when  Thou  comest  to  judge  the  world 
with  Thy  truth.  Grant  my  prayer,  I  beseech  Thee,  for  the 
love  of  Thy  son,  our  Saviour,  Jesus  Christ.  Amen."  1 

i  Ibid,,  p.  313. 


THE    END 


INDEX 


Accident  cases,  57 

Adams,  Charles  Francis,  2d,  51 

Adams,  Henry,  51. 

Adams,  President  John,  16,  44; 
plan  of  legal  study,  132,  133 

Adams,  President  John  Quincy, 
44 

Advertising,  59 

Advocates,  personal  sacrifices, 
143 

American  Bar  Association,  49, 
54,  61,  144. 

American  Bar  has  grown  bet- 
ter, as  time  went  on,  144 

Amicus  cunce,  11 

Anacharsis,  101 

Analytic  faculty,  139 

Andrew,  Gov.  John  A.,  quoted, 
23 

Antiquated  procedure,  91. 

Arbitration,  international,  67 

Argumentation,  legal,  16,  18; 
brevity,  26,  27 

Aristotle,  101 

Art,  law  is  an,  22 

Attorneys.  See  Lawyers.  Deg- 
radation of  name,  73 

Austin,  John,  on  sovereignty, 
138 

Baldwin,  Roger  S.,  46 
Ballantine,  Sergeant,  48 
Bar,  attractions  of,  5;  discipline 
of,    9;    American,     14;    tra- 
ditions of,  16;  English,  42,  76; 
overcrowded,    43,    44,    54;    a 


monopoly,  60;  esprit  de  corps, 
60 

Barristers,  number  of,  43;  in- 
come of,  46;  no  partnerships 
of,  50 

Bayard,  James  A.,  106 
Benjamin,  Judah  P.,  47 
Bleckley,  Chief  Justice,  77,  92, 

99 

Boards,  practice  before,  66 
Boileau-Despreaux,  71 
Bolingbroke,  quoted,  13,  72 
Bradley,     Justice     Joseph     P., 

quoted,  131 

Bramwell,  Baron,  quoted,  78 
Bright,  John,  quoted,  27 
Brother,   term    of    address    be- 
tween lawyers,  62 
Brougham,  Lord,  20 
Bryce,  Lord  James,  41,  46 
Burke,  Edmund,  24;  quoted,  28, 

54,  111 
Business,  variety  of  legal,  62 

Campbell,  Lord,  76 
Carlyle,  Thomas,  quoted,  27,  146 
Carter,  James  C.,  quoted,  30 
Carter,  Orrin  N.,  quoted,  77 
Case-books,   120,  125,  126,   128- 

131 

Case-lawyers,  103 
Cecil,    Lord    William,    quoted, 

125 

Character,  good,  106,  152 
Chitty  on  Pleading,  16 
Choate,  Joseph  H.,  46 


155 


156 


INDEX 


Cicero,  quoted,  5,  10,  24,  n.  1, 
25,  32,  83,  147,  151 

Clients,  duties  to,  80,  89,  108 

Cockburn,  Lord,  81 

Codification,  95-97 

Coke,  Sir  Edward,  on  Littleton, 
16;  income,  47 

Coleridge,  Lord  Chief  Justice, 
113 

Coleridge,  Samuel  T.,  quoted, 
31,  87,  111 

Common  Law,  23-95,   134,   145 

Comparative  Law,  131,  132 

Conflict  of  laws,  120 

Conkling,  Roscoe,  46 

Construction  of  documents,  33 

Contingent  fees,  49 

Counsel,  right  to  have,  8 

Courts,  authority  and  function, 
7;  preventive  powers,  40; 
making  law,  118;  declaring 
statutes  unconstitutional,  119 

Crispe,  Thos.  Edward,  Reminis- 
cences quoted,  50 

Cromwell,  Oliver,  30 

Cross-examination,  90 

Curran,  John  P.,  51,  52,  114 

Curtis,  Justice  Benjamin  R.,  56 

Custom,  6,  149 

Denman,  Lord,  143 

Depew,   Chauncey    M.,    quoted, 

140 

Dialectic,  18 
Divine  law,  135 
Doe,  Chief  Justice,  102 
Duty  to  clients,  83 
Dwight,      Professor      Theodore 

W.,  107 

Education,  legal,  115-141;  pro- 
gressive character  of,  54; 
never  ends,  115;  beginning  of, 
116;  from  books,  115;  lec- 


tures, 126;  statutes,  116;  in 
an  office,  122;  different  meth- 
ods of,  125 

Edwards,  Pierpont,  44 
Eldon,  Lord,  47,  149,  150 
Ellsworth,  Chief  Justice  Oliver, 

79 

Eloquence,  144 
Emerson,  Ralph  Waldo,  quoted, 

113 
Employers'   Liability  Acts,  56, 

57 

Equitable  conversion,  150 
Erskine,  Lord,  47;  opinion  of  a 
trial   lawyer's   duty,   79,    117, 
118;  studying  philosophically, 
122,  124 

Equivocation,  138 
Estates,  practice  in  settling,  66 
Ethics,   legal,   49;    standard    of 

raised  after  1850,  74 
Ethics,  studying  for  its  bearing 

on  law,  133 

Evarts,  Wm.  M.,  46,  143 
Evidence,    legal,    22;    artificial 

rules,  100 
Evolution,  law  a  process  of,  135 

Faust,  148 

Fees,    amount,    44—49,    55,    56; 

contingent,  49 
Forbes,  Sir  Wm.,  82 
Forms,  necessity  of,  91 
Fraternity  of  the   Bar,  60 

Gladstone,  Wm.  E.,  27 

Goethe,  148 

Golden  rule,  148 

Great    Britain,    unity    of    legal 

system,  119,  120 
Growth  of  law,  97 
Guilty,  defending  the,  79  et  teq. 

Habits,  a  lawyer's,  87 


INDEX 


157 


Hadley,  Arthur  T.,  quoted,  62 

Hague  Tribunal,  67 

Hale,  Sir  Matthew,  80 

Haller,  19 

Halsbury,  Lord,  quoted,  78 

Hamilton,  Alexander,  45,  49,  60 

Hamlet,  71 

Hay,  John,  138 

Hegel,  122 

Hermeneutics,  34 

History,  lawyers  must  study,  14 

Hoar,  Senator  Geo.  F.,  quoted, 

133 
Holmes,  Justice  Oliver  Wendell, 

quoted,  124,  136 
Hubbard,  Thomas  H.,  89 

Ideas,  145 

Ideals  of  the  legal  profession, 

142-153;    justice    the    basis, 

146 

Imagination,  107 
Influence,  a  lawyer's,  37 
Institutions,    changes    in    legal, 

15 
Instruction,     legal     modes     of, 

115-141 

Interpretation,  legal,  34 
Isadore  of  Seville,  quoted,  39 

Jacks,  Professor,  24 

Jeffreys,  Chief  Justice,  12 

Johnson,  Reverdy,  45 

Johnson,  Samuel,  81,  82 

Joubert,  86 

Judges,  function  of,  7;  must  be 
lawyers,  37 

Judgments,  as  historical  land- 
marks, 123 

Judicial  legislation,  95-99 

Jury,  trial  by,  25,  100-102;  de- 
velopment historically,  124 

Jus,  147 

Justice,   underlies   law,   6,    15J, 


182;  political,  23;   sometimes 
works  injustice,  95 

Labori,  Maitre,  110 

Land  titles,  searching,  57,  58; 
Torrens  system,  58 

Law,  both  a  science  and  an 
art,  120,  121 ;  a  science  of  re- 
lations, 131 ;  an  applied  sci- 
ence, 145;  definitions  of,  5,  6, 
37,  87;  how  made,  7;  com- 
parative, 16,  131,  132;  justice 
in,  27;  relation  to  civilization, 
33;  changes  in,  98,  134,  149; 
official  statements  of,  118;  sci- 
entific arrangement  of,  118; 
a  silent  historian,  122;  Law 
Schools,  118,  120;  class-room 
exercises,  126-130;  what  they 
offer,  140 

Law-suits,  theory  of,  82";  of 
doubtful  issue,  86 

Lawyers,  function  in  court,  7; 
admission  to  the  bar,  7;  have 
a  franchise,  8;  duties  and 
aims,  142;  right  to  have  serv- 
ices of,  8;  each  is  an  officer 
of  court,  8;  advising  not  to 
sue,  10;  office  of,  21;  duty  of 
research,  28;  study  of  litera- 
ture, 28,  140;  hold  a  public 
trust,  32,  and  office,  35;  influ- 
ence of,  37;  on  government, 
38;  liability  for  negligence, 
49;  generally  inclined  to  con- 
servatism, 149;  groups  of,  62, 
63;  variety  of  functions,  64; 
popular  view  of,  71,  73;  trick- 
iness,  72,  73;  conditions  of 
success,  106  et  seq.;  young 
lawyers  have  great  oppor- 
tunities for  improvement,  140 

League  of  Nations,  68 

Lecky,  Wra.  H.  H.,  29 


158 


INDEX 


Lectures  in  Law  Schools,  126 

Legal  Aid  Societies,  56 

Legal    education,    cannot   make 

lawyers,     139;     in     sociology, 

135;    never   ends,    140;    aims 

and  ideals,  152 
Legislation,  a  lawyer's  part  in, 

29,  30;  judicial,  95-99 
Lincoln,  President,  quoted,  23, 

36;  Seward's  estimate  of,  25; 

logical  powers,  138 
Litigation,  discouraging,  36,  69 
Litigiousness,  9,  151 
Logic,  16,  137 

Macaulay,  Lord,  quoted,  75 
Mandeville,  quoted,  72 
Malesherbes,  143 
Mansfield,  Lord,  19,  47 
Marshall,    Chief    Justice    John, 

45,  138 

Martin  Luther,  44 
Mason,  Jeremiah,  44 
Maxim,  Sir  Hiram  S.,  75 
Maxims,  legal,  17 
Milton,  quoted,  18 
Ministry,  claims  as  a  profession, 

1-3,  31 
Moral    philosophy    as    a    legal 

study,  133,  134 
Morality     sometimes     confused 

with  law,  136 

Napoleon,     influence     on     the 

courts,  39 
Nature,  laws  of,  22,  135 

O'Conor,  Charles,  quoted,  139 
Office  lawyers,  64,  112 
Oratory  at  the  bar,  25,  108 
Ordeal,  124 
Order,  public,  142;  the  soul  of 

law,  124 
Otis,  James,  132,  133 


Oxford  University,  "  bidding 
prayer,"  151 

Pandects,  21 

Parker,  Courtlandt,  quoted,  31 

Parsons,  Chief  Justice  Theophi- 
lus,  45,  133 

Particulars,  study  of,  130 

Paul,  St.,  148 

Pendennis,  13 

Personal  qualities,  106 

Peter  the  Great,  33 

Phillips,  Wendell,  145 

Philosophy  of  law,  21 

Pinckney,  Wm.,  45 

Pleadings,  legal,  21 

Pollock,  Sir  Frederick,  quoted, 
6,  165 

Pomeroy,  Professor  John  N., 
quoted,  40 

Pope,  Alexander,  quoted,  71 

Practice,  sharp,  75 

Pragmatism,  135 

Prayer,  the  Oxford  "bidding 
prayer,"  151;  Chief  Justice 
Ryan's,  152 

Preparation   for  the  Bar,  1 

Principles,  decisions  resting  on, 
111 

Private  way,  98 

Procedure,  legal,  15,  91  et  feq.; 
judicial  control  over,  102 

Profession,  choice  of,  1—4;  many 
now  to  choose  from,  42;  over- 
crowding, 42;  character  of  le- 
gal, 72 

Public  service,  31 

Psychology,  25,  29,  122 

Queen  Caroline's  case,  80,  81 
Quickness,   113 

Reading,  Lord  Chief  Justice, 
103 


INDEX 


159 


Relations,  legal,  20,  92 

Remedies,  legal,  24 

Reports,  judicial,  7,  102-104, 
118,  120 

Retainer,  refusing  a,  84 

Reverence,  22,  23 

Rhetoric,  16 

Rights,  duty  to  enforce,  10;  un- 
justly exercised,  19;  legal 
remedies,  24 ;  unenforceable, 
27 

Robinson,     Professor     W.     C., 

quoted,  120 
Roman  law,  its  view  of  lawyers, 

21,  35;  defects  in,  97;  study 

of,  131,  133 
Roosevelt,  President  Theodore, 

quoted,  38 
Rousseau,         Jean         Jacques, 

quoted,  28 
Ruskin,  quoted,  3 
Russia,  lawyers  in,  33 
Ryan,  Chief  Justice,  quoted,  94 

Savigny,  quoted,  16 
Science,  Law  a,  35 
Self-confidence,  111 
Sempronius,  Asellio,  123 
Service,  public,  42,  151 
Seward,  Wm.  H.,  26 
Schaick,  Peter  Van,  74 
Schiller,  108 
Schopenhauer,  18,  70 
Scott,  Sir  Walter,  15,  72 
Shaw,    Chief    Justice    Lemuel, 

45 
Sherman,  Roger  Minott,  quoted, 

1,3,3 

Sidney,  Algernon,  trial  of,  11 
Sill,  Edward  Rowland,  quoted, 

12 
Smith,  Judge  George  H.,  on  the 

aid  of  law  from  logic,  138 
Smith,  Sydney,  53 


Social  advancement,  as  a  ju- 
dicial consideration,  136,  137; 
changes  basis  of  law,  145,  146 

Socialism,  137 

Social  justice,  69 

Social  progress,  124,  134,  140 

Social  service,  a  lawyer's  part 
in,  42 

Society,  organized,  135 

Sociology,  as  a  legal  study,  135 

Socrates,  20 

Socratic  plan  of  teaching,  127 

Solicitors,  English,  43,  64 

Sovereignty,  Austinian  theory, 
138 

Specialists,  63 

Spinoza,  quoted,  10 

Stamp  tax  on  writs,  74 

Statutes,  a  lawyer's  influence  in 
making,  29,  39;  and  in  con- 
struing, 84;  rules  for  fram- 
ing, 39;  must  be  in  harmony 
with  public  opinion,  123;  con- 
struction of,  134 

Stephen,  Sir  James,  97 

Stoic  philosophy,  136 

Story,  Justice  Joseph,  45 

Swift,  Dean,  quoted,  26,  102 

Swinney's  case,  84 

Tenderden,    Lord,    quoted,    37; 

income,     47;     character     as 

judge,  76;  remarks  on  forms, 

88 
Thackeray,  criticism  of  lawyers, 

13 
Title,    searching    land    records 

for,  58 
Tocqueville,  Alexis  de,  quoted, 

40 

Tooke,  Home,  25 
Tradition,  134 
Trial-lawyers,  112 
Truro,  Lord  Chancellor,  48 


160  INDEX 

Trustees,  lawyers  as,  65  Wigmore,  John  H.,  quoted,  16 

Truth,  18,  147  Wirt,  William,  84 

Wythe,  Chancellor  George,  84 
Universals,  study  of,  130 

War,  raises  new  questions,  67          Youth,  in  some  things  a  benefit 
Webster,  Daniel,  45  to  a  lawyer,  24 


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